As the U.S. Supreme Court begins to consider whether to take up the Texas abortion ban case, legal experts say it might end up turning on a decision by conservative Justice Antonin Scalia.
On Nov. 4, Planned Parenthood, the American Civil Liberties Union and other pro-abortion groups appealed to the Supreme Court to reinstate a district court's injunction that blocked a portion of the state's abortion law requiring abortionists to have admitting privileges at a local hospital, citing that it would close a majority of abortion clinics in the state and block women's access to abortion.
The appeal was filed with Justice Antonin Scalia, who gave the state until Tuesday to file a response. Scalia could rule on the injunction himself, or refer the issue to the nine-member Court.
In its Supreme Court filing on Tuesday, Texas Attorney General Greg Abbott defended the state's new regulation that requires abortionists to have admitting privileges at a hospital located within 30 miles of where they perform abortions "to ensure the highest standards of care – as well as continuity of care – in case of a medical emergency."
The state arguesthat "it's not just the Texas legislature that sees the wisdom in HB2's admitting-privileges requirement; the National Abortion Federation [in a pamphlet, titled Having an Abortion? Your Guide to Good Care (2000)] has counseled patients to 'make sure' that their doctor is 'able to admit patients to a nearby hospital (no more than 20 minutes away).'"
The state also contends the law prohibits hospitals that receive federal funding from blocking abortionists from gaining admitting privileges; and those that are found to have discriminated against doctors that perform abortions will face a penalty.
Abortion clinics closing
During a recent conference call, Planned Parenthood claimed that requiring abortionists to have admitting privileges at local hospitals is keeping women from accessing abortions and is forcing a majority of abortion facilities to close.
"One of the women whose abortion appointment was canceled was Marni Evans, an independent consultant in Austin, Texas, [who said] she is considering flying to Seattle, where she used to live, to terminate her pregnancy," Reuters reports.
Evans, 37, explained that she and her fiancé decided she should have an abortion based on financial reasons.
"My fiancé and I are both self employed. We can barely afford our own healthcare, let alone a child," Evans said. "We want to start a family someday, but we just can't do it now."
The number of abortion clinics that have closed in the state because abortionists haven't obtained admitting privileges at a local hospital is not yet determined, but Texas Right to Life expects to have an accurate count by the end of the week.
Emily Horne, legislative associate with Texas Right to Life, told The Christian Post on Monday that Planned Parenthood and Whole Woman's Health have been upfront about the number of clinics that are no longer providing abortions, but added that the closings of independent abortion facilities are more difficult to verify.
Speaking about RU-486 and other abortion-inducing drugs, Horne told CP that because the state's law was fully reinstated by the Fifth Circuit Court, the exceptions that District Judge Lee Yeakel had made was overruled. Thus, the law is fully in effect, as it was passed.
This means that, in Texas, abortionists must follow FDA guidelines for dispensing abortion-inducing drugs to patients who are required to take each dose at the abortion facility and not at home. Similarly, the doctor facilitating the abortion must also be present at the clinic when the drugs are given to the patients.
What happens next?
"The Fifth Circuit Court overruled the lower court's injunction, but they haven't heard the full case and that won't actually happen until January," Horne told CP.
"Right now, the full court case sits in the Fifth Circuit pending action. And what they [Planned Parenthood, et. al.] asked the Supreme Court to do, pending the trial, is to continue to enjoin the law. That's what Justice Scalia is reviewing, since he's not actually hearing the full case. He's only asked for the evidence to help him make a decision as to whether or not to re-enjoin the law. That's the only thing he has the power to do right now, since the full court case isn't headed to court yet, and is still waiting on Fifth Circuit action," she explained.
According to Horne, the timeframe Justice Scalia has to make his decision isn't clear.
"It's an emergency request," she added, "but I don't think that he's obligated to respond by any certain time…and he hasn't indicated when he will respond. If he does refuse Planned Parenthood's request, they have the option to appeal to another member of the Supreme Court."