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Health & Science

Some Texas Abortion Providers Win Legal Reprieve From Supreme Court

Despite ruling, not all shuttered clinics will have resources to reopen



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whole womens clinic
Whole Woman’s Health is the lead plaintiff in the lawsuit for this U.S. Supreme Court case.

Texans on both sides of the abortion issue are taking stock after the U.S. Supreme Court intervened in a lawsuit. The Court issued an order late Tuesday saying thirteen Texas clinics that had to close can re-open their doors for the time being.

The clinics had shut down October 3 because they could not meet the standards of ambulatory surgery centers. That’s one of the Texas law’s new requirements. But now the U.S. Supreme Court has said those clinics can continue to operate while the law is appealed.

“I was really surprised and really delighted in a way I hadn’t expected,” said Amy Hagstrom Miller, founder and chief executive of Whole Woman’s Health. Whole Woman’s is the lead plaintiff in the lawsuit for this case. The company once had six clinics in Texas, but the law forced all but one to close.

Miller said she will re-open her clinic in McAllen by Friday, which will really help low-income women in the Rio Grande Valley. They had been forced to travel to the nearest clinic in San Antonio, but many couldn’t afford the trip or take time off from work, she said.

“To begin with there were only two clinic facilities in the Rio Grande Valley and both of us had to close, which meant that women had to travel upwards of 250 miles round-trip in order to get an abortion safely,” Hagstrom said.

Hagstrom is also working to re-open a second clinic in Fort Worth.

But even with this ruling, the ongoing fight in Texas has permanently changed the landscape for abortion providers, and not all the clinics will re-open.

Miller’s clinic in Austin no longer has a lease or a state license. One Houston doctor got frustrated, closed his clinic at the end of September, and retired. Miller once had a clinic in Beaumont, but doctors there can’t obtain admitting privileges at nearby hospitals, so she closed it in March.

In addition, any clinic that re-opens might have to close again if the Fifth Circuit Court of Appeals eventually rules the Texas law can stand.

Planned Parenthood in Houston was one of only eight places left in the state to get an abortion after the non-compliant clinics closed October 3.

“Limiting abortion access to eight in Texas — eight simply isn’t enough,” said Rochelle Tafolla, a Planned Parenthood spokeswoman. “We were overwhelmed with phone calls.”

When the other clinics closed, Planned Parenthood received over 500 calls in just one day, about six times the normal volume. Some women whose appointments were cancelled drove straight over to the Houston building off the Gulf Freeway.

“Women were scared, they were nervous, they didn’t understand what was happening,” Tafolla said. “We’re just thrilled the court stepped in to stop this terrible law and we hope that it will eventually and ultimately be overturned.”

The Supreme Court’s intervention means that the cycle of emergency motions is over. The Fifth Circuit has agreed to expedite the full appeal, which could be heard as soon as December.

Houston-based Texas Right to Life supports the law and its strict new rules for providers. Emily Horne, a legislative associate, says the surgery center rule will make abortion safer for women.

Horne said it’s discouraging that some clinics can now re-open, because she believes they don’t offer good medical care. But she remains optimistic the law will stand in the long term.

“The encouraging thing for us is that this case is still before the Fifth Circuit, and the Fifth Circuit has already said a lot of positive things about the state’s merit and likelihood of success,” Horne said. “And none of that actually changed with what the Supreme Court said.”

This is the second lawsuit over the Texas abortion law, known as HB2. The law’s tempestuous passage in the summer of 2013 propelled the political rise of state senator Wendy Davis, now the Democratic candidate for Texas governor.

The first lawsuit focused on a different part of HB2, the rule that doctors performing abortions obtain admitting privileges at nearby hospitals. The U.S. Supreme Court declined to intervene in that case, and that part of the law still stands, except for two clinics.

The second lawsuit focuses primarily on the surgery center rule, according to attorney David Brown. He’s part of the legal team at The Center for Reproductive Rights in New York, which helped some of the Texas clinics file the second lawsuit.

Brown said no one can say for sure why the U.S. Supreme Court chose to intervene this time around. But he noted the reality on the ground has changed since last fall.

“Now we have hindsight and so the courts are looking at not what could happen but also what already has,” Brown said.

Since last fall, more Texas clinics have closed, which made the “evidence” presented in the second lawsuit more compelling, Brown explained.

“We were able to show that when clinics have to comply with onerous restrictions that are designed to close them under the pretext of health, that they will in fact close, that compliance is impossible,” Brown said, “And that when women have to drive hundreds of miles to get to the nearest health clinic for abortion services, many of them won’t be able to do that.”

Brown said although the Fifth Circuit appeal could be heard in December it’s more likely it will take place early in 2015.