Impact of Death of Justice Scalia: SCOTUS to Hear Texas HB 2 Abortion Case March 2nd

SCOTUS in Mourning
AP Photo/J. David Ake

The death of Justice Antonin Scalia will have an immediate impact on a Texas case scheduled for oral argument March 2nd at the U.S. Supreme Court. The court is set to hear a lawsuit claiming that a Texas law unconstitutionally limits access to abortions in the state.

As reported by Breitbart Texas in November, the U.S. Supreme Court granted certiorari review of a challenge to provisions of Texas House Bill 2 (HB 2) in Whole Woman’s Health et al. v. Cole (now Hellerstedt), Comm’r, Texas DHS, et al (No. 15-274).  It is set for oral argument on Wednesday, March 2.

Former Governor Rick Perry signed HB 2 into law in July of 2013. The issues before the U.S. Supreme Court pertain to provisions that Texas lawmakers say are designed to improve the quality of care for women and to improve the sanitary conditions of surgical centers used to provide women’s health services.

One of the provisions being challenged requires that abortion facilities comply with the standards already in place for ambulatory surgical centers. A second provision requires practitioners who perform abortions at the clinics to have admitting privileges at a hospital within thirty miles of the facility.

Medical experts have previously testified that the requirements are reasonable and effective measures intended to improve the standard of care for women undergoing abortion procedures and to ensure women’s health and safety.

Opponents challenging the Texas law argue that the measures are designed to limit abortions by limiting women’s access to abortion clinics.

The questions before the U.S. Supreme Court include:

  1. Does a court err by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health?; and
  2. Did the Fifth Circuit err in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health-or any other valid interest?

Breitbart Texas reported in late June 2015 that the Supreme Court ruled to stay the order of a lower federal court requiring abortion clinics in Texas to close or remain closed. The order from the court in Whole Woman’s Health maintained the status quo while the court decided whether to decide the case on the merits on any appeal. Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito voted to deny the application for stay.

The law requires that abortion clinics must now meet the same operating-room standards as hospitals.

Pro-abortion groups call the legislation in Texas “sham laws” and complain they “are shutting clinics down and placing countless women at risk of serious harm,” as reported by Breitbart News.

At the time the U.S. Supreme Court decided to hear the case, Texas Attorney General Ken Paxton responded saying, “The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women. The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities. 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.”

Now that Justice Scalia has died, the U.S. Supreme Court is evenly divided and there is a serious question as to whether the Court will uphold the Texas law. If the high court splits 4-4 on this decision, the decision of the U.S. Court of Appeals for the Fifth Circuit upholding the Texas law will stand. The Fifth Circuit upheld on June 9, 2015, the strict restrictions on abortion clinic standards passed in HB 2 by the 2013 Texas legislature (14-50928) (although it modified on June 19 its opinion as it related to an McAllen abortion facility).

If the decision of the Fifth Circuit stands because there is an even split on the U.S. Supreme Court, states within the Fifth Circuit’s jurisdiction, Texas, Louisiana, and Mississippi, would then likely be able to continue to affect abortion issues until a new U.S. Supreme Court justice is confirmed.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as an associate judge and prosecutor in Texas. Follow her on Twitter @LanaShadwick2


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