Attorneys for the State of Texas filed their response to abortion providers’ request that the Supreme Court step into the legal battle over HB 2. In their response, the attorneys told the Roberts Court that despite the fact clinics across the state will close and tens of thousands of patients will be forced to travel hundreds of miles for care, there’s no need to act.
The response was filed a little over a week after reproductive rights advocates filed their emergency request with the Supreme Court. The emergency filing by reproductive rights advocates came after the Fifth Circuit Court of Appeals took the extreme step in staying enforcement of a lower court injunction that blocked the hospital admitting privileges portion of HB 2 and part of the law’s regulations on medication abortions. The emergency petition to the Supreme Court simply asks the Roberts Court to put back in place the district court stay while the appeal process moves forward. That would prevent Texas from enforcing the hospital admitting privileges provision of the law, and assure that clinics across the state can remain open while the courts sort out the constitutionality of HB 2.
The question before the Supreme Court is a narrow one: Was the Fifth Circuit wrong when it lifted the lower court’s stay on HB 2? But you wouldn’t know the request was so narrow based on the state’s response. Attorneys for the state took the opportunity to fully defend the law and attack the district court’s ruling and reasoning, casting as much doubt as they can on the claim that tens of thousands of Texans will lose access to care, almost previewing for the Court future arguments over the merits of HB 2.
“The applicants focus almost exclusively on their claim that ‘approximately 20,000 Texas women’ will be unable to obtain abortions each year on account of HB 2’s hospital-admitting privileges requirement,” they state. “But a litigant does not establish a factual proposition by asserting it to be so.” This is a cynical strategy to color the merits of a case the court may hear long before the merits are actually before it. And it may have the added impact of giving the Supreme Court reason to reject the case and let the Fifth Circuit’s decision to let Texas enforce the admitting privileges requirement despite the fact it’s been held unconstitutional.
The talking point attorneys for the state use is one the Fifth Circuit also found persuasive: that “over 90% of abortion patients in Texas will live within 100 miles of an abortion clinic even after HB 2 takes effect.” And like the Fifth Circuit, attorneys for Texas sneer at plaintiffs’ claims that the clinics that remain open will lack the capacity to accommodate the demand from the requirements. They frame their clear disdain for the reproductive health crisis sweeping the state as a “factual dispute,” one in which plaintiffs did not meet their burden to prove the claim that abortion access will be unduly burdened by HB 2 and for support of the Fifth’s Circuit’s conclusion that, on appeal, the district court ruling blocking the admitting privileges law will likely be reversed.
Another important component emerging in the battle over restrictive abortion laws is the difference between challenging the law on its face versus challenging it as applied. A facial challenge to a law’s constitutionality means, essentially, that there’s no way the law could be constitutional in any application. An as-applied challenge is an individual challenge to the constitutionality of a law in which the plaintiff argues that (in this case) HB 2 is unconstitutional because it prevented her from accessing an abortion. Most challenges are facial. And in 2006, the Roberts Court made it clear in Gonzales v. Carhart, the case that upheld the federal “partial birth” abortion ban, that such challenges “impose a heavy burden upon the parties in maintaining the suit.”
The distinction between a facial challenge and an as-applied challenge is an important one, and one attorneys for the State of Texas emphasize in their response papers. Most notably, it’s important because it shows a new iteration of the anti-choice strategy of making abortion as difficult to obtain and as expensive as possible. Add the cost of forcing tens of thousands of patients to litigate the impact of a particular abortion restriction on them personally, and the strategy becomes unmistakeable. It is also a line of reasoning put forward recently in Horne v. Isaacson, in which the district court ruled Arizona’s 20-week abortion ban was constitutional, in part because if a pregnant person in the state could hypothetically access abortion services, the law could not be a pre-viability “ban,” but rather just a very rigorous restriction. That decision was reversed by the Ninth Circuit Court of Appeals, but attorneys for Arizona have asked the Roberts Court to take their appeal, as early as this term.
Attorneys for Texas close their response by saying it is “hard to imagine” the Court ever stepping into this particular “undue burden” claim, no matter what happens with this petition or later in January when the Fifth Circuit hears the merits appeal. And perhaps here Texas has a point. In the last two weeks, the Supreme Court turned down two separate abortion rights cases it had an earlier indicated an interest in. One was a challenge to an Oklahoma Supreme Court decision blocking a state medication abortion ban, and another was a challenge to a decision that blocked Oklahoma’s forced ultrasound law. Both those cases involved challenges to laws based in part on the fact that they unduly burdened abortion rights. If the Court had wanted to radically alter the abortion rights landscape and signal to anti-choice activists that no restriction could go too far, it could have in those two cases. Instead, the Roberts Court appears to be endorsing the legal-in-name-only approach to abortion rights, which may not bode well for the plaintiffs in getting the district court’s stay reinstated and keeping those clinics open while the appeal moves forward. And it certainly does not bode well for the future of abortion access in the United States.