U.S. Supreme Court overrules Texas abortion law

by Marty Schladen, El Paso Times—

AUSTIN – The U.S. Supreme Court on Monday struck down a 2013 Texas law, ruling that it placed an undue burden on a woman’s constitutional right to have an abortion.

The ruling, Whole Women’s Health v Hellerstedt, is now regarded as the biggest abortion decision in a quarter century. It is expected to invalidate similar abortion laws in a number of other states.

El Paso figures significantly in the 5-3 decision. Between Justice Stephen Breyer’s majority opinion and Justice Samuel Alito’s dissent there are 21 references to the city as the justices hashed over the impacts of the law and supporters’ justifications for it.

“It’s a victory for common sense,” said Dr. Franz Theard, a physician who operates Hilltop Women’s Reproductive Clinic in El Paso, said of the opinion. “It’s a victory for abortion rights.”

Whole Women’s Health, which owns three Texas abortion clinics and one in Las Cruces, argued that Texas House Bill 2 places two unreasonable burdens on Texas clinics: that they be ambulatory surgical centers and that their doctors have admitting privileges at local hospitals.

Proponents of the law said its intent was to protect women’s health. But physicians’ groups, including the American Medical Association, said the requirements were unnecessary and might even harm women.

“It was never about women’s health and safety,” Texas Rep. Donna Howard, D-Austin, said at a press conference on Monday. “It was about creating barriers to access.”

El Paso Bishop Mark J. Seitz condemned the decision.

“I am extremely disappointed to hear that the U.S. Supreme Court has acted to overturn the will of the people of Texas to provide common sense protections to women who are seeking the serious medical procedure of an abortion,” he said in a statement. “An abortion results in the death and dismemberment of an unborn child but it also can have serious risks for the mother. A 2009 Finnish study reported that 20 percent of abortions had potentially serious complications.”

The majority opinion noted, however, that during oral arguments, lawyers for the state couldn’t point to “a single instance in which the new requirement would have helped even one woman obtain better treatment…”

Other city leaders praised the ruling.

“Today’s decision will allow Texas’ remaining clinics to keep their doors open, and for other clinics to open or reopen, improving much-needed access to care for women across the state,” said Texas Sen. Jose Rodriguez, D-El Paso in a statement.

Now the chairman of the Senate Democratic Caucus, Rodriguez is a veteran of the raucous 2013 legislative sessions which produced then-Sen. Wendy Davis’ filibuster, massive protests and, ultimately, HB2.

“Make no mistake – this is a victory for our Texas families and women’s rights,” Rodriguez said. “From its inception, H.B. 2 has been a thinly veiled attempt to restrict access to safe and legal abortion, offered under the condescending pretext ‘of protecting women.’”

The court agreed Monday that the intent of HB2 was to cut access to abortions – not to protect women.

It said the law violated 14th Amendment protections as interpreted in the 1992 decision Planned Parenthood v Casey. That ruling said states cannot place an undue burden on a woman’s right to abortion.

Texas Attorney General Ken Paxton, whose office argued before the court in support of the law, implied that the Supreme Court’s decision was undemocratic.

“HB2 was an effort to improve minimum safety standards and ensure capable care for Texas women,” Paxton said in a statement. “It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly-elected representatives.”

Gov. Greg Abbott was attorney general when the Whole Women’s Health lawsuit was filed. In a statement, he also disagreed with Monday’s ruling.

“The decision erodes states’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost,” Abbott said. “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”

In the wake of the law’s passage in 2013, the number of clinics in Texas has dropped from 41 to 18 and was expected to drop further — to 10 or fewer — if the Supreme Court upheld House Bill 2.

At Monday’s press conference, abortion-rights advocates said that the closures swamped the clinics that remained open, creating long waiting lists and pushing some women past 20 weeks into their pregnancy – the deadline after which women cannot legally have abortions unless there are severe health risks.

Once closed, it will be difficult to reopen Texas clinics, advocates said.

“We have a lot to do to rebuild abortion access in Texas,” said Rebecca L. Robertson, legal and policy director for ACLU of Texas.

The effect of the law on the overall number of abortions is not publicly known. NBC News on Sunday published a report in which a source accused state officials of sitting on state data in advance of the Supreme Court decision.

State Rep. Joe Moody, D-El Paso, said he and other Democrats believed that was the law’s intent when it was passed three years ago.

“In 2013, we stood on the House floor and called HB2 exactly what the Supreme Court recognized it as today: an unconstitutional sham designed to restrict women’s access to healthcare, not to protect it,” Moody said in an email. “Unfortunately, the majority of our state leaders ignored us and wasted countless of dollars from Texas taxpayers to defend their lie. I hope that instead of more of the same, we can move forward with an honest dialogue that will improve women’s healthcare in Texas.”

El Paso is home to two abortion clinics. One was temporarily forced to stop offering abortions when a doctor there couldn’t get admitting privileges to a local hospital. Abortion doctors often have difficulty getting admitting privileges because the procedure is relatively safe and result in few hospital admissions, experts testified in the case.

In its ruling, the Supreme Court quoted the president of El Paso’s Reproductive Services Clinic.

“… it would be difficult for doctors regularly performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because ‘[d]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital,'” the opinion said. “In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.”

The requirement for clinics to upgrade to ambulatory surgical centers had been placed on hold pending the Supreme Court’s ruling, which found that the requirement was unnecessary.

In their opinion, a majority of justices estimated that it would cost between $1.5 million and $3 million for clinics to upgrade to become ambulatory surgical centers. The requirement was expected to reduce the number of Texas clinics as low as eight and to place millions of women hundreds of miles from the nearest clinic.

Theard said he would have had no choice had the requirement stood.

“We were ready to close because we would have had to,” he said.

Rep. Cesar Blanco, D-El Paso, said Monday’s decision was especially important to Hispanic women.

“Today is a historic victory for women and many others who fought tirelessly for women’s health and for the right of women to make their own health decisions,” Blanco said in a text message. “This is especially a win for the 2.5 million Latinas of reproductive age in Texas who were disproportionately affected by HB2, who face great barriers to access to health services – because of their immigration status, poverty, lack of transportation or childcare, or because they can’t afford to take time off of work.”

Seitz said that by overturning the Texas law, the Supreme Court was leaving the state open to abuses similar to those of a Pennsylvania doctor who was convicted of killing three infants who were born alive.

“Unregulated facilities such as the one in Philadelphia under the direction of the murderous abortionist, Kermit Gosnell, led to abuses that only a few years ago shocked the nation with his butchery of women for profit,” Seitz said. “Without oversight, what is to prevent this situation from taking place here in Texas?”

In his opinion, Justice Breyer said that Gosnell was ignoring existing regulations when he committed his crimes.

“Gosnell’s behavior was terribly wrong,” Breyer wrote. “But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.”

In El Paso, speakers at multiple press conferences had different takes on Monday’s landmark decision.

Gabriela Federico is Reverence for Life coordinator for the El Paso Catholic Diocese.

As with Texas Right to Life, Federico accused the Supreme Court of putting profits over women’s health.

“We think that women deserve better health care,” she said. “When you go to an outpatient surgical center, you expect the highest standards of health care. Why can’t we have that for women?”

NPR reported, however, that Texas doesn’t require riskier procedures such as childbirth to take place in ambulatory surgical centers.

At separate event, Samantha Romero spoke about her experience at a crisis pregnancy center in 2013. She now is president of the West Fund, which helps low-income women afford abortions.

“I felt lied to,” Romero said of her visit to a crisis center. “They didn’t offer any alternatives to my pregnancy that did not result in birth. They talked down to me and talked about beliefs that were not mine.”

Theard, owner of El Paso’s Hilltop Clinic, said he was happy with the decision, but he added that he expected more restrictions from the Texas Legislature.

“At some point, they’re going to find another way to restrict access,” he said. “But we’ll deal with that when it comes.”

Marty Schladen can be reached at 512-479-6606; mschladen@gannett.com; @martyschladen on Twitter.

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