Despite Supreme Court Ruling, Some Texas Abortion Clinics Remain Closed

Texans on both sides of the abortion issue are taking stock after the U.S. Supreme Court intervened in a lawsuit over controversial state requirements for clinics. The court issued an order late Tuesday saying 13 Texas clinics that had to close can re-open their doors for the time being.

The clinics had shut down Oct. 3 after a federal appeals court ruled that they had to comply with the state law’s mandate that they meet the standards of ambulatory surgery centers. That court will also hear arguments on a lawsuit brought by the clinics arguing the law is unconstitutional. But the U.S. Supreme Court this week 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.

(Photo by Karl Eisenhower)

(Photo by Karl Eisenhower)

Miller said she will re-open her clinic in McAllen by Friday, which serves 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.

“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 she closed it in March when doctors there can’t obtain admitting privileges at nearby hospitals, another requirement in the state law.

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 Oct. 3.

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

Texas is the country’s second most populous state, with about 26 million people.

When the other clinics closed, Planned Parenthood received more than 500 calls in just one day, about six times the normal volume. Some women whose appointments were cancelled drove to the Houston clinic 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 Sen. Wendy Davis, who waged an unsuccessful filibuster over the law. She is now the Democratic candidate for Texas governor.

The first lawsuit focused on the part of the law requiring that doctors performing abortions obtain admitting privileges at nearby hospitals. The U.S. Supreme Court declined to intervene in that case.

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 lawsuit.

Brown said no one can say for sure why the 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.

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