Special session to Supreme Court: How a Texas abortion law made it to the highest U.S. court
<p>Texas took center stage in the national discussion about women’s reproductive rights in June 2013, sparking support from some and outrage from others.</p>
Texas has been legislating abortion since 1854.
The first Texas abortion law stated that the person providing the abortion would receive up 10 years in prison. Two years later, Texas relaxed the law. If the woman consented to the abortion, prison time would only be between two and five years. Punishment was given to the person administering the procedure, not the pregnant woman.
This is one of the only times, if not the only, in Texas history that an abortion law was made less strict instead of more restrictive.
June 2013 was when Texas took center stage in the national discussion about women’s reproductive rights, sparking support from some and outrage from others.
As U.S. Judge Lee Yeakel wrote in Planned Parenthood v. Abbott, “Today there is no issue that divides the people of this country more than abortion.”
The United States Supreme Court is set to hear Whole Women’s Health v. Hellerstedt this year, a case originating in the Lone Star state over abortion restrictions set forth in 2013.
This will be the first abortion case the Supreme Court will have heard since 2007.
Here’s an in-depth look at how a piece of Texas legislation, House Bill 2, made it to the Supreme Court.
Bills on Bills on Bills A look at all the legislation regarding abortion that were introduced during the 83rd session of the Texas Legislature
Former Gov. Rick Perry is known as the most pro-life Texas governor the state has ever had, according to analysis from Project Vote Smart.
During his three full terms as governor, 53 pieces of legislation regarding abortion or women’s healthcare came through both halves of the Texas legislature. Forty-two pieces were introduced during the 83rd legislative session in 2013 alone, according to data from Reproductive Health Reality Check.
Twenty-five pieces of legislation in 2013 introduced before HB 2 aimed to restrict a woman’s access to abortion.
Out of all the abortion-related legislation introduced in 2013, the only piece to pass was HB 2. It passed during a special session of the legislature.
The four legislative actions to come out of HB 2 are:
- A requirement that physicians have admitting privileges at a hospital within 30 miles of the facility.
- A ban on abortions at 20 weeks of pregnancy post-fertilization or later, with an exception in the case of life endangerment to the pregnant woman or severe fetal abnormality. Cases of rape are not considered exceptions
- Additional restrictions on the use of medical abortion (the abortion pill).
- A requirement that all abortion facilities meet the standards of ambulatory service centers
HB 2 is often referred to as an “Omnibus Abortion Bill” because it combines many pieces of failed legislation from earlier in the session.
The pieces of failed legislation that were rewritten and became HB 2 were:
- SB 537, SB 24: Require abortion centers to meet requirements for ambulatory surgical centers
- HB 2364, SB 25, HB 16, SB 13: Ban abortions after 20 weeks unless carrying the pregnancy to full term would kill the mother or cause severe abnormalities for the child
- SB 1198, HB 2816, HB 57: Require physicians to have admitting privileges at a hospital that provides OB-GYN services within 30 miles
- SB 18: Prohibit distribution of abortion-inducing drugs unless the physician and woman were at a licensed abortion facility. Women would also have to schedule follow-up appointments.
There were two omnibus abortion bills prior to HB 2: HB 60 and SB 5.
A Pair of Pink Sneakers and a Spirited Debate The introduction of Senate Bill 5 lead to a filibuster that will never be forgotten
The debate over abortion access came to a head in 2013 when Senate Bill 5 was introduced into the Texas Senate during a special session called by Gov. Perry.
“The entire reason that issue heated up, sad to say, because it impacted so many women is because it got wrapped up in political ambitions,” said former Sen. Wendy Davis (D-Fort Worth) in an interview with KVUE.com. “From Rick Perry to David Dewhurst to others, who had their sights set on other offices.”
SB 5 contained abortion restrictions including a ban on abortion after 20 weeks of gestation, requirements for abortion providers and restrictions on abortion medication.
SB 5, authored by now Texas Comptroller Glenn Hegar, did a few things:
- Banned abortion in Texas at or after 20 weeks post-fertilization with no exception for rape or incest survivors
- All doctors providing abortions have to have hospital-admitting privileges within 30 miles of every clinic where they practice
- A woman must have two in-person visits with a doctor before she is able to get an abortion.
- Every abortion provider must be licensed as an ambulatory surgical center, which is a medical facility where patients go to have surgery post-consultation. Getting the designation would cost each facility $1 million.
KVUE reached out to Glenn Hegar and Texas House Rep. Jodie Laubenberg, who authored SB 5 and HB 2 respectively, for comment and as of publication, have not received a response.
With SB 5 slated to pass in the Texas Senate during a special session of the 83rd legislature, some were concerned. Including Davis.
Previously, the Texas House had been debating the House equivalent of the bill and added a new provision: the ambulatory surgical center requirement.
This addition meant the bill had to sit for 48 hours before debate could open up on it.
"We knew exactly when it would be ripe for consideration. It was going to be 11:11 A.M. on the 25, the last day of the legislative session,” Sen. Davis said. “We had time to plan for that. We met the Sunday before and we talked about who would filibuster the bill
After a discussion with Senate Democrats about who would filibuster the bill, Davis donned her pink sneakers and stood for 13 hours to keep SB 5 from passing.
Davis filibustered late into the night to keep the vote on SB 5 from happening. When she stopped, the people in the chamber took over — passing enough time to keep the final chamber vote from happening before midnight.
The Senate tried to record the bill as passing, even though the vote concluded after midnight.
“There were a number of Republican senators who disagreed with that bill, who knew what its impact would be but voted for it anyway because they felt like they had to because of the dynamics in their own party and their ability to be reelected,” Davis said.
While SB 5 did not pass on June 25, it was not dead. The filibuster was a speed bump in the bill’s path to becoming law.
“There’s always value in fighting against things that you believe strongly shouldn’t be,” Davis said. “Even if we felt pretty sure another special session would be called and the bill would pass.”
A Resurrection and a Rebrand The death of SB 5 was not the end of the road for Texas Republicans
When SB 5 failed, Gov. Perry called for a second special session for the legislature with hopes of passing the bill the second time around.
Special sessions of the legislature operate under different rules. They require less floor debate, making it easier for legislation to be pushed through, according to Think Progress.
During his tenure as Texas governor, Perry called for 12 special sessions, the most called for by a governor in the history of the state.
Gov. Perry called for this special session less than 24 hours after Sen. Davis’s filibuster. The session was scheduled to start July 1 in the House.
SB 5 became House Bill 2.
HB 2 passed on July 10, 2013 in the House, July 12, 2013 in the Senate and was sent to Gov. Perry on July 15, 2013.
Surrounded by hundreds of people in the Capitol’s rotunda, Gov. Perry signed HB 2 into law on July 18, 2013.
The First Legal Challenge HB 2 was first challenged in September
While HB 2 became law in July 2013, portions of the bill were set to go into effect at different times.
Two parts of the bill, restricting access to medication for abortion and requiring physicians to have admitting privileges at a local hospital, were set to go into effect on Oct. 29. According to Reproductive Health Reality Check, this would’ve closed roughly half of the abortion providers in the state.
In September 2013, Planned Parenthood was concerned for the well-being of Texas women and lodged a complaint against then-Attorney General Greg Abbott.
The complaint, which was filed on Sept. 27, argued that restricting medication and requiring admitting privileges:
“violate[d] the constitutional rights guaranteed to both Plaintiffs and their patients by the Fourteenth Amendment to the United States Constitution. Preliminary and permanent injunctive relief is necessary to protect the health of the women of Texas and the constitutional rights of Plaintiffs and their patients.”
This case did not challenge the 20-week abortion ban set by the bill.
A judge in a district court in Austin found in October 2013 that the admitting privileges and medication-induced abortion provisions to be mostly unconstitutional, because they put an “undue burden” on women. The district judge issued a stay, or a delay of the law.
The “undue burden” standard came out of Planned Parenthood v. Casey in 1992.
The 5th Circuit Court of Appeals heard the case and lifted the stay. Then, the U.S. Supreme Court heard this case in November 2013 and ruled to let Texas enforce the law. After this ruling, abortion clinics began closing around the state.
“The waiting times have increased pretty dramatically because there are fewer clinics now. Even though they may be accessible in terms of proximity to people seeking abortion if they live in one of the major urban areas where clinics remain, their wait time has increased because there are so few clinics to meet the demand of women of child bearing age in the state,” Davis said. “They’ve seen the trauma that women have endured trying to access abortion.”
The second legal challenge, Whole Women’s Health vs. Lakey, was filed in April 2014. This case, after a series of legal rulings, will become at Whole Women’s Health vs. Hellerstedt.
For a full timeline of Planned Parenthood v. Abbott, go here.
Texas Makes it to the United States Supreme Court The last time the Supreme Court heard an abortion case was 2007
Whole Women’s Health v. Hellerstedt has the potential to reshape how abortion access is determined across the United States.
The plaintiff, Whole Women’s Health, a women’s healthcare provider, initially challenged the ambulatory surgical center and the admitting privilege requirements.
Prior to the upcoming ruling, Texas has 18 open abortion clinics, which is down from 41 prior to the 2013 law, according to the Texas Policy Evaluation Project.
If the Supreme Court rules against Whole Women’s Health, the number of open clinics will become no more than 10, according to the Center for Reproductive Rights.
The court is being asked to decide whether or not the guidelines set forth in HB 2 create an “undue burden" on women who are trying to access abortion.
The defendant, John Hellerstedt, is the commissioner of the Texas Department of State Health Services. He took office in January 2015.
This case is known by a few different names — Whole Women’s Health v. Lakey, Whole Women's Health v. Cole and now, Whole Women’s Health v. Hellerstedt — due to the change in health services commissioner over the course of the case's existence.
Several Texas politicians, like Sen. Ted Cruz (R-TX), Gov. Abbott and Sen. Davis, have filed amicus briefs with the Supreme Court.
After Supreme Court justice Antonin Scalia died at a West Texas ranch in February, concerns over this case's ruling were heightened.
The current composition of the court means the case will likely be either a 5-3 decision or a 4-4. The ruling will come down to how the swing vote, Justice Anthony Kennedy, decides to vote.
If the case is decided in a 4-4 vote, the Supreme Court will automatically revert to the ruling of the lower court that had most recently heard the case, according to the Texas Tribune.
Oral arguments are set to be heard Mar. 2.
Oral Arguments Here's a look at what happened in the courtroom.
On the morning of Mar. 2, representatives from both sides began pleading their case to the eight justices sitting on the bench at the U.S. Supreme Court.
Representing the plaintiff, Whole Women's Health, was Stephanie Toti, senior counsel for the Center for Reproductive Rights, and Donald B. Verrilli, Jr., the U.S.Solicitor General.
Speaking on behalf of the defendant, Hellerstedt, was Scott A. Keller, the Texas Solicitor General.
Toti opened her argument on behalf of the plaintiff:
"The Texas requirements undermine the careful balance struck in Casey between States' legitimate interests in regulating abortion and women's fundamental liberty to make personal decisions about their pregnancies."
Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor asked questions and offered commentary that appeared complimentary to Toti's arguments while Justice Samuel Alito challenged Toti's remarks.
Toti argued the provisions set forth by HB 2 will result in clinic closures, citing evidence that there were clinic closures when portions of HB 2 went into effect. These clinics were reopened when lower courts issued a stay, or delay of the law.
Justice Alito still did not see a correlation.
"Well, there is very little specific evidence in the record in this case with respect to why any particular clinic closed," Alito said in the courtroom. "Basically, your argument is that the law took effect, and after that point, there was a decrease in the number of clinics."
Toti provided explicit evidence for many of the 20 clinics that closed after HB 2 was enacted.
Justice Kagan called this an almost "perfect controlled experiment as to the effect of the law."
"It's like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen," Kagan said.
During Toti's opening arguments, Justice Stephen Breyer remained fairly quiet, as did Justice Anthony Kennedy, who is considered to be the swing vote on the court.
Kennedy did ask Toti about the ability for clinics that operated as ambulatory surgical centers to be built.
"Suppose there were evidence that there was a capacity and a capability to build these kind of clinics, would that be of importance?," Kennedy said.
Toti said evidence shows there is not the capacity and capability.
After an in-depth discussion about the ASC requirement, justices turned their attention to restrictions on access to abortion medication.
Sotomayor asked how many other medical conditions not tied to a medical procedure require patients to take pills in front of doctors, to which Toti replied "None." This came after Sotomayor pointed out the burden created by forcing women to drive long distances on separate occasions to access the pills.
Verrilli backed up Toti's arguments, citing the expense of converting and building ASCs and how the 10 clinics that would remain open if HB 2 was upheld would not be able to service all of the women in Texas.
When Keller took the floor, Justice Ginsburg immediately brought up that 900,000 Texas women live more than 150 miles from an abortion provider that would meet the provisions of HB 2.
Keller said only 25 percent of Texas women of reproductive age did not live within 100 miles of an ASC, excluding people in McAllen and El Paso.
McAllen was given relief, he said, and women in El Paso could use a facility in New Mexico.
Keller and the justices went back and forth over whether there was a benefit to the burden HB 2 would place on women.
"Are there going to be more women or fewer women who die of complications due to an effort to create an abortion?," Breyer said. "You've read the same articles I have. And of course the argument is if you lead to self-induced abortion, you will find many more women dying."
Keller maintained that an undue burden was not being placed on women, clinics could be reopened by applying for relief and though other medical procedures could have more complications, abortion was allowed to be treated differently due to an earlier Supreme Court precedent.
For the full transcript of the oral arguments, go here.
The Decision
On Monday, June 27, 2016, the Supreme Court issued its long awaited and anticipated verdict. The Court was measuring two points of the law: Doctors performing abortions must have admitting privileges and abortion clinics must meet the requirements of a surgical center.
The Court held that the two provisions provided an "undue burden" enforced upon women seeking an abortion and thus was unconstitutional.
Writing for the majority, Justice Stephen Breyer said, "Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution"
The decision by the Supreme Court invalidating the two provisions will reverberate across the United States. Many states had passed similar laws that forced surgical center requirements and admitting privileges on abortion providers. Those provisions are now invalidated across the United States, based on the Court's decision Monday.
The Court's majority opinion was delivered by Justice Breyer, who was joined in the decision by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justices Clarence Thomas and Samuel Alito dissented on the decision along with Chief Justice John Roberts.
The full decision can be read below: