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McNeely: Will Supreme Court buy Texas' abortion charade?

Nov. 18, 2015 at 11:11 p.m.


Texas is back in the spotlight with the U.S. Supreme Court's recent decision to hear challenges to the state's toughest-in-the-country anti-abortion law.

It is fitting, because it was in a Texas case — Roe v. Wade, in 1973 — that the high court first declared women have a constitutional right to terminate a pregnancy.

The latest case is Whole Woman's Health v. Cole, brought by Whole Woman's Health, founded in Austin in 2003. Plaintiffs argue that House Bill 2, passed by the Texas Legislature in a special session called by then-Gov. Rick Perry in 2013, is an anti-choice bill disguised as an effort to protect women's health.

The law's two requirements the plaintiff's contest are that doctors performing abortions have admitting privileges at a hospital within 30 miles and that abortion clinics meet the standards of accredited surgical centers, an upgrade that would cost millions of dollars.

Texas Attorney General Ken Paxton, a Republican who voted for HB 2 while still a state senator, on Oct. 5 opposed the request for the Supreme Court to hear the case. But after it agreed to hear it, he insisted again the law is vital to women's health.

"The commonsense measures Texas has put in place elevate the standard of care and protect the health of Texas women, (by protecting against) "substandard conditions at abortion facilities," Paxton argued.

"The advancement of the abortion industry's bottom line shouldn't take precedent over women's health, and we look forward to demonstrating the validity of these important health and safety requirements in Court," Paxton said.

The plaintiffs argue the law actually is designed to make it significantly more difficult for Texas women to obtain an abortion. And medical experts, including the American Medical Association and the American College of Obstetricians and Gynecologists, say legal abortion care in the U.S. is extremely safe and laws like Texas' would do nothing to make it safer.

"H.B. 2 does not serve the health of women in Texas but instead jeopardizes women's health by restricting access to abortion providers," the doctors' groups said in opposing the law before the Fifth Circuit Court of Appeals.

Amy Hagstrom Miller is president of Whole Woman's Health, and lead plaintiff in the appeal. She said the law, if allowed to go into full effect, "would have devastating effects on women and families around the state."

Because of other factors in the law that this case does not contest, the number of clinics in Texas has been cut in half, from 41 to 20.

If HB 2 becomes law, it would close another 10 clinics, leaving as few as 10 remaining in the whole state to serve 5.4 million women of reproductive age, the plaintiffs say. The remaining clinics would be in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio.

"There would be no licensed abortion facilities west of San Antonio," the challengers' brief said. The only clinic south of San Antonio, in McAllen, it added, would have "extremely limited capacity."

The Center for Reproductive Rights said Oct. 5 that "This massive reduction in essential services would overwhelm the small number of remaining clinics and increase already significant delays, cutting off access to safe and legal abortion care for millions of women."

U.S. District Judge Lee Yeakel of Austin had found the hospital admitting privileges provision of HB 2 unconstitutional in late October of 2013, on the eve of its taking effect.

Then-Attorney General Greg Abbott immediately appealed to the 5th U.S. Circuit Court of Appeals, which stayed Yeakel's decision. But then the Supreme Court stayed the 5th Circuit's decision.

In 2014, in a continuing legal pinball, Yeakel ruled another part of HB 2 was unconstitutional. On June 9, the 5th Circuit again overturned Yeakel.

"This unanimous decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women," Abbott ecstatically declared.

"I am pleased with the Fifth Circuit's decision to uphold HB 2 and the State of Texas will continue to fight for higher-quality healthcare standards for women while protecting our most vulnerable — the unborn," Abbott said in a statement.

But, the Supreme Court on June 29 again stayed the 5th Circuit's decision, until it could consider whether to hear the case — which it now says it will.

The Texas women know the argument that HB 2 is to protect their health, rather than to keep them from obtaining abortions, is bogus. So do the Republican officials saying it.

Whether the court will allow this charade to continue will probably be announced next June, at the height of the presidential race. The political impact of that decision should be very, very interesting.

— Dave McNeely, an Austin columnist who covers Texas politics, appears Thursday.

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