WASHINGTON (Reuters) - Lawyers for the state of Texas are making an unusual argument in a closely watched abortion case set to go before the U.S. Supreme Court on Wednesday: A law that placed new restrictions on clinics providing abortions didn’t have much of an impact.
The Texas abortion law requires clinic physicians to have admitting privileges at a hospital within 30 miles (50 km). A separate provision, which has not yet gone into effect, would mandate that abortion clinics must have costly hospital-grade facilities.
Abortion providers dubbed the measure “the Texas clinic shutdown law.” In arguments challenging it, they point out that 22 of 41 clinics in Texas have closed since it was passed in 2013.
But Texas Solicitor General Scott Keller takes issue with those numbers, saying the abortion providers have failed to show that the law was the only cause of all the closures.
The extent to which the clinic closures can be blamed on the law is the crux of the first abortion case to reach the court in almost a decade. A 1992 precedent requires the court to strike down any law if it finds that it imposes an “undue burden” on a woman’s right to have an abortion.
Among the state’s arguments is that the challengers have failed to demonstrate why some clinics closed, including five that shuttered after the law was enacted in July 2013 but before it went into effect that November.
Keller told Reuters that the abortion providers’ characterization of the law’s impact is “revisionist history.”
The providers want the court “to infer that all facility closures” were caused by the law, Keller said. “The facts don’t bear that out.”
Stephanie Toti, a lawyer with the Center for Reproductive Rights, which represents the providers challenging the law, said there is “no dispute” that the measure has caused or contributed to closures, including 11 on the day it went into effect in November 2013.
Even if other factors contributed to some closures, the law played a role, Toti said. In some cases, clinic providers, knowing the law was coming, decided to close up when their licenses expired, she said.
In interviews with providers, Reuters found that in some cases a number of factors were in play when clinics closed down.
Seven clinics run by Planned Parenthood, including facilities in Midland and San Angelo in West Texas, closed after the 2013 law passed but before it went into effect. Some Planned Parenthood clinics shut down in part because of the funding cuts that were independent of the 2013 law, known as HB2, the group told Reuters.
Planned Parenthood has filed a brief in support of the challenge to the law.
HB2 hit clinics after years of “hostile policies,” said Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes, the group’s political action arm. “They were victims of what was the larger problem.”
Two years before the law was enacted, the Texas legislature cut funding for family planning, which affected groups that run abortion facilities. A year later the state excluded Planned Parenthood from a joint federal-state program that funded family planning and cancer screenings.
The closure in March 2014 of a clinic in Beaumont run by Whole Woman’s Health, the lead plaintiff in the Supreme Court case, illustrates the various pressures on abortion providers. The group’s president, Amy Hagstrom Miller, said she made the decision for a variety of reasons, including that she had only one doctor at the site, who was 75, and the hostility in the community to having an abortion facility there.
On top of all that was HB2’s pending provision that clinics be equipped with hospital-grade facilities to provide more expansive care for patients, which she said would have been beyond her organization’s budget.
“HB2 was in many ways the straw that broke the camel’s back,” she said.
Abortion-rights advocates have argued that the Texas law makes it impossible for clinics to operate in large swaths of the state, creating an undue burden on the right of women to seek abortions.
The case gives the eight justices, one short following the death of Antonin Scalia on Feb. 13, the chance to decide how much states can regulate abortion without infringing upon the right to abortion.
Scalia’s death means the court could be split 4-4, if Justice Anthony Kennedy, the court’s regular swing vote on social issues, sides with his three conservative colleague. That would uphold the Texas law but not set a precedent. If Kennedy sides with the court’s four liberals, the court could strike some or all of the law down.
Reporting by Lawrence Hurley. Additional reporting by Andy Sullivan.; Editing by Amy Stevens and Lisa Girion