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Texas clinics are asking the Supreme Court to take its first abortion case since 2007

(Tom Williams / Getty News Images)
  1. Texas abortion clinics petitioned the Supreme Court Thursday to hear a case challenging the state's controversial new abortion regulation.
  2. The Supreme Court has already taken steps suggesting the justices are inclined to hear the case. If they did, it would be the first major abortion case the Court has heard in nearly a decade.
  3. The new law requires all Texas abortion clinics to become ambulatory surgical centers, a process the clinics argue is unnecessary and expensive — so expensive that it will, according to the legal brief, cause three-quarters of Texas clinics to close.

Texas law would leave 900,000 women more than 150 miles from an abortion clinic

texas abortion protest Erich Schlegel/Getty Images

Abortion rights supporters rally in front of the Texas Capitol. (Erich Schlegel/Getty News Images)

The Texas abortion clinics are challenging Texas's House Bill 2, which the legislature enacted into law in July 2013.

That bill has two main restrictions, both of which the clinics challenge in this case. One was a requirement that all abortion clinics have admitting privileges at local hospitals. That piece of HB2 went into effect in September 2013, and forced 14 clinics that could not obtain admitting privileges to close.

HB2 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 upward 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.

Texas clinics have said because these upgrades are so costly, many facilities would close. Their lawyers previous stated that about 900,000 of Texas's 4.5 million reproductive-age women would live more than 150 miles from a clinic if HB2 stands.

The key legal question: Is the Texas law a substantial obstacle to abortion access?

abortion pro-choice sign Jim Watson/AFP via Getty News Images

(Jim Watson/AFP via Getty News Images)

The Supreme Court has, in previous rulings, articulated standards for judging the constitutionality of abortion restrictions like these. And one key standard the justices have settled on is whether a restriction places an "undue burden" on women seeking to 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.

The Texas clinics argue that HB2 ought to fit the "undue burden" definition: Because it would force most Texas abortion clinics to close, it would become the type of "substantial obstacle" that the Supreme Court has previously found to be unconstitutional.

If the Texas law stands, the clinics argue, "every woman in Texas would have to live under a legal regime that fails to respect her equal citizenship status and would force her to grapple with unnecessary and substantial obstacles as a condition of exercising her protected liberty."

Texas: No evidence that women would be turned away from clinics

Texas has defended its new restrictions as not placing a substantial burden on those seeking abortions. As evidence, it points to the fact that the admitting privileges portion of the law has been in effect for more than a year, forcing 14 clinics to close. The clinics, they pointed out, presented no evidence of women who wanted to obtain an abortion not being able to do so.

The Fifth Circuit Court of Appeals used that argument to uphold the law in October.

"Demand for abortion services in Texas may decrease in the future, as it has done nationally over the past several years," the Fifth Circuit ruled. "The record lacks evidence that the previous closures ... have caused women to be turned away from clinics. Without any evidence ... plaintiffs do not appear to ... show that the ambulatory surgical center provision will result in insufficient clinic capacity."

The Fifth Circuit continued that "the evidence does not indicate, without specificity, that by requiring all abortion clinics to meet the standards of ambulatory surgical centers, the overall costs of accessing an abortion provider will likely increase."

Texas has also challenged the clinics' argument that the new restrictions are unnecessary because abortion is generally a safe procedure, saying it's not the place of the courts to second-guess the possible outcome of the law.

The Supreme Court has already hinted it wants to take this case

supreme court at night Manny Ceneta/AFP/Getty

(Manny Ceneta/AFP via Getty News Images)

Earlier this summer, the Supreme Court agreed to put HB2 on hold until it decided whether it would take up the case. Observers took this as a clear signal that the justices ultimately intend to weigh in on the Texas law — if not, why would they allow the stay?

The Court has not taken any major abortion opinions in recent years. The last was arguably Gonzales 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").

Because the court has not weighed in on abortion, it's hard to know how, exactly, a decision like this one would play out. Abortion rights supporters have generally been hesitant to bring other challenges before the Supreme Court, for fear that the justices would use it as an opportunity to roll back Roe v. Wade, the 1973 landmark decision finding a constitutional right to abortion.

Abortion rights supporters haven't, for example, brought a challenge to a wave of laws that ban abortion at 20 weeks despite the fact that 11 such restrictions have passed since 2011. That they've settled on this Texas case suggests they're confident that, on this type of restriction, the justices will rule in their favor.