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Post date: January 5 2016

A.G. Schneiderman Leads Multistate Coalition Urging U.S. Supreme Court To Strike Two Provisions Of Texas Law That Substantially Limit Access To Abortion Services In That State

Schneiderman: New York Is Committed To Protecting A Woman’s Right To Access Safe Abortion Services Without Unwarranted Obstacles

New York’s Amicus Brief, Joined By 13 Other States And The District Of Columbia, Urges Court To Invalidate State Laws That Substantially Restrict Access To Abortion When They Purport to Advance Women’s Health But Do Not Actually Do So

The Brief Further Argues that A State Cannot Rely On Services Available In A Neighboring State To Show That Its Laws Do Not Create A Substantial Burden On Access To Abortion

NEW YORK – Attorney General Eric T. Schneiderman today announced, together with 13 other states and the District of Columbia, his office has filed a friend-of-the-court brief urging the U.S. Supreme Court to invalidate two provisions of Texas law that significantly restrict access to abortion services in that state. The provisions at issue—requiring doctors to have admitting privileges at a nearby hospital, and requiring clinics to comply with the standards for surgical clinics—were purportedly enacted to protect the health of women, but the trial court found that the provisions would not in fact protect women’s health and could even undermine it. Additionally, although the regulations would force the closure of the only clinic then remaining in Texas to serve the western part of the state, the court wrongly held that women in western Texas were not substantially burdened because they could access services in neighboring New Mexico. The amicus brief argues that each state is responsible for protecting the constitutional rights of persons within its borders, and cannot rely on the availability of services in a neighboring state.

Attorney General Schneiderman’s brief is joined by: California, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maryland, Maine, Massachusetts, Oregon, Vermont, Virginia, Washington, and the District of Columbia.

“The Constitution protects a woman’s right to access abortion services,” said Attorney General Schneiderman. “Yet we are seeing a proliferation of burdensome abortion restrictions such as those at issue here that are touted as public health measures, but do not actually promote women’s health or safety and stand contrary to medical evidence. We urge the Supreme Court to rule that states cannot adopt baseless restrictions that burden or deny the constitutional right to access abortion services.”

The Texas provisions at issue in the case require that all abortion clinics comply with standards applicable to ambulatory surgical centers and that any physician performing an abortion hold admitting privileges at a hospital within thirty miles of the location where the abortion is performed. While the provisions were purportedly enacted to promote women’s health, the evidence in the case of Whole Woman’s Health v. Cole overwhelmingly established that the provisions would not serve that purpose and could even undermine it. As a result, a federal district court in Texas enjoined the provisions’ enforcement. The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision and upheld them (except that it enjoined the enforcement of each provision at a single abortion clinic), finding that it was required to defer to the state’s judgment in the matter. The Fifth Circuit additionally upheld the provisions even as applied to the only Texas abortion clinic remaining within 550 miles of El Paso, reasoning that the women in that western part of the State could access abortion services in the neighboring state of New Mexico. The U.S. Supreme Court stayed enforcement of the Texas provisions and thereafter granted certiorari to review the Fifth Circuit’s decision.

In the states’ brief, Attorney General Schneiderman argues that when a state adopts a burdensome abortion regulation that purports to advance its interest in women’s health, it should be required to demonstrate that the regulation will actually advance that interest. Review under this standard allows states to regulate in the interest of health and safety, while safeguarding a woman’s right to access abortion services from unwarranted and burdensome infringements.

The states’ brief additionally argues that the availability of abortion services outside a state is irrelevant to the question whether a particular abortion regulation unduly burdens the right to access abortion services. The obligation to preserve the constitutional rights of persons within its borders rests with each state individually and is unaffected by the choices of other states. A contrary rule would have serious adverse consequences: it would create uncertainly about the ongoing constitutionality of a state’s law in light of changing circumstances in neighboring states, limit the regulatory choices of neighboring states, and strain the healthcare systems of those neighboring states. 

The brief was prepared by New York Solicitor General Barbara D. Underwood, Deputy Solicitor General Andrea Oser and Senior Assistant Solicitor General Claude S. Platton.

The Attorney General’s Office is committed to protecting and ensuring full access to reproductive health services. To file a complaint, contact the Office’s Civil Rights Bureau at Civil.Rights@ag.ny.gov or 212-416-8250. 

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