The Texas law has two provisions that abortion-rights supporters are challenging. | John Shinkle/POLITICO Abortion issue could reach SCOTUS

The Supreme Court was asked Monday to block parts of a Texas law that restricts access to abortion, an emergency request that could be just the first of several abortion-related cases to reach the court in the upcoming term.

The U.S. Court of Appeals for the 5th Circuit on Thursday allowed Texas to implement a law that restricts abortion providers and immediately shuttered all but seven of the state’s remaining clinics. On Monday, the women’s health facilities asked the high court to essentially undo that decision, allowing them to remain open as the legal fight proceeds.


“Women’s constitutional rights and access to safe, legal abortion care have been dealt a devastating blow,” said Nancy Northrup, president and CEO of the Center for Reproductive Rights, which is leading the legal challenge. “We look now to the U.S. Supreme Court to immediately reinstate the injunction, allow the clinics to reopen and put an end to the irreparable and unjustifiable harm to Texas women that is happening right now.”

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It’s unclear whether the court will grant the emergency request, or be willing to hear the full legal case on the Texas law when it inevitably reaches the Supreme Court again.

But if the Supreme Court were to hear the Texas case, or one of the suits over similar laws in other states, it could mark the most significant Supreme Court review of abortion access since the court’s 2007 ruling on so-called partial-birth abortion. A decision could determine where state officials can legally draw the line between regulating abortion and ensuring access.

“This issue is crying out for Supreme Court resolution,” said Jennifer Dalven, director of the Reproductive Rights Freedom project at the ACLU, which has represented abortion providers. Allowing the Texas law and other states’ laws to proceed “means that for many, many women, the constitutional right to an abortion is just not a right anymore.”

The Texas law has two provisions that abortion-rights supporters are challenging fiercely: that abortion providers have admitting privileges at a nearby hospital and that clinics meet the more intensive standards of ambulatory surgical centers. Provisions are also under legal fire in Mississippi, Alabama and Wisconsin, among other states. Providers there have have asked the courts to keep the clinics open during the legal battle.

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The groups bringing suit say these restrictions put an undue burden on women trying to obtain a constitutionally protected medical procedure. With the latest Texas closures, more than 900,000 women would have to travel 300 miles-plus round trip if they were to try to obtain an abortion, according to the Center for Reproductive Rights.

State leaders and abortion opponents say both measures are designed to ensure that Texas providers can adequately protect women’s health.

In the 5th Circuit decision Thursday, which lifted a temporary ban on the law, two of the judges explained how their ruling conflicts with other appellate rulings on whether there is an undue burden on a woman’s right to access abortion. Their phrasing — directly comparing their decision with other circuits’ — all but teed up the issue for the Supreme Court, which tends to weigh in only when lower courts are divided.

“Some circuits have used the balancing test to enjoin abortion regulations,” wrote Judges Jennifer Walker Elrod and Jerry Edwin Smith. “Other circuits – including ours – have not.” They then listed the several other cases on which circuit courts have split.

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The Supreme Court isn’t unfamiliar with the Texas law since it was asked about a year ago to block other parts of the statute. The justices refused.

At that time, the four dissenters – Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – suggested that they “will wish to consider” the constitutionality of the admitting privileges requirement.

Whether they would want to intervene now, instead of waiting until lower courts deal with the legal merits, is unclear. Only four justices’ votes are needed to accept a case.

Stephanie Toti, senior counsel at the Center for Reproductive Rights, said she is “fairly confident that the issues in this case are ripe for Supreme Court review.”

The 5th Circuit itself is divided over admitting privileges, with a different panel of the court recently granting an injunction to at least temporarily block a Mississippi law. The state has appealed for a second review by the entire court.

“Admitting privileges seems to be the issue with the most energy behind it,” said Ovide Lamontagne, general counsel for Americans United for Life, which backs the state laws. “Since Roe v. Wade, the court has recognized the state’s interest in regulating medical practices.”

Other abortion-related provisions could also work their way to the justices’ doorstep this year. A slew of litigation is challenging nonsurgical abortions, which use medication to terminate a pregnancy, as well as requirements like the one in Texas requiring the ambulatory surgery center standards.

There’s no guarantee that the justices will accept any abortion cases, of course. Paul Clement, a former solicitor general for President George W. Bush, believes the Supreme Court’s pattern in recent years is telling.

“There have only been a couple abortion cases in the last decade,” he said before the 5th Circuit decision. At a Heritage Foundation event previewing the high court’s new term, Clement predicted “a relatively rigorous application” of the justices’ traditional standards in reviewing circuit court splits.

“Barring that, I don’t see a sort of appetite to reach out and take those cases,” he said.