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Supreme Court blocks controversial Texas abortion law

The Supreme Court has put on hold a controversial 2013 Texas abortion law — a sign that it will likely take up the major abortion challenge in its next term.

The Fifth Circuit Court of Appeals previously found the Texas restriction, which requires abortion clinics to make costly upgrades to become ambulatory surgical centers, to be constitutional.

An abortion clinic in Austin asked the Supreme Court to step in and block that ruling from taking effect until the justices had decided whether or not to review that Fifth Circuit decision. On Monday, the justices agreed.

The Supreme Court stay suggests the justices will take up the abortion case

The Supreme Court has not taken any major abortion opinions in recent years. The last was arguably Gonzalez v. Carhart, a 2007 decision that upheld a federal ban on a specific abortion procedure used for later-pregnancy terminations (abortion opponents called the procedure "partial birth abortion.")

The fact that the Supreme Court decided to put the Fifth Circuit decision on hold suggests to observers that they'll likely want to weigh in on the case.

SCOTUSBlog's Lyle Denniston also notes that the Supreme Court has a separate but similar case pending before it from Mississippi, where a clinic is challenging an admitting privilege law.

Clinics say the new Texas law would force them to close

Texas' House Bill 2 — the legislation that Texas Sen. Wendy Davis attempted to filibuster — had two main abortion restrictions. One was a requirement that all abortion clinics have admitting privileges at local hospitals. That piece of H.B. 2 went into effect in September 2013, and forced 14 clinics that could not obtain admitting privileges to close.

Texas abortion clinics are closing: Women are traveling further to obtain abortions as some clinics have closed in the face of new regulations. In Texas, for example, the number of clinics has fallen from 43 in August 2013 to eight in October 2014. (Data for these charts come from the Texas Tribune)

H.B. also requires abortion clinics to become ambulatory surgical centers, essentially mini-emergency rooms that can handle complex medical situations. Ambulatory surgical centers, for example, must have wide enough hallways to fit a gurney and larger operating rooms than abortion clinics typically use.

Abortion clinics in Texas have said that upgrading to these new standards would cost upwards of $1 million. They have argued that the new requirements are unnecessary as abortions tend to have a very low complication risk. Approximately 0.05 percent of first trimester abortions have complications that require hospital care. A Texas district court judge agreed with them and found that law to be an "unconstitutional undue burden on women."

But in an October ruling, the Fifth Circuit Court of Appeals overturned that opinion, finding both H.B. 2 restrictions to be constitutional. The three-judge panel found that Texas women will still be able to obtain abortion and that the longer travel distances would not unduly burden those seeking to terminate pregnancies. As evidence, they cited the fact that the admitting privilege law already shut more than a dozen clinics but that, in these new arguments, they did not see any "evidence that the previous closures....have caused women to be turned away from clinics."

The key metric in the Texas ruling: what's an undue burden?

The Supreme Court has, in previous rulings, articulated standards for judging the constitutionality of abortion restrictions. One key standard is whether a restriction places an "undue burden" on those seeking terminate a pregnancy.

The Supreme Court has previously defined an undue burden as a law with the "purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The Supreme Court has previously ruled that laws requiring women to notify their spouses of their abortion, for example, are an undue burden as it could make it impossible for some women to access the procedure.

In this case, a district court ruled that the Texas law was an undue burden because it meant women would have to travel much further to terminate a pregnancy. Approximately 900,000 of Texas' 4.5 million reproductive-age women will now live more than 150 miles from an abortion clinic.

But the Fifth Circuit panel disagreed: Texas women could, they argued, travel that distance and still find abortion accessible.