By Marcia Coyle, From The National Law Journal

Raising the stakes that abortion will be on the decision docket in the new U.S. Supreme Court term, a Texas coalition of reproductive health clinics and physicians asked the justices on Wednesday to review a federal appellate court decision upholding state restrictions that, they say, would close more than 75 percent of the clinics in Texas.

Without the justices’ intervention, only 10 of the 41 clinics operating before the restrictions were enacted will remain open, according to the petition filed in Whole Women’s Health v. Cole.

The Texas clinic challenge is the second abortion clinic petition awaiting the high court when it opens the term on Oct. 5. The other petition involves Mississippi clinic restrictions.

The Texas clinics are challenging a June 9, three-judge panel ruling by the U.S. Court of Appeals for the Fifth Circuit. The appellate panel largely reversed a district court decision barring the enforcement of two key provisions in H.B. 2, an omnibus law enacted by the Texas Legislature in 2013 and that imposed a number of restrictions on abortion providers.

On June 29, the Supreme Court in a 5-4 order blocked the panel decision pending the filing and action by the justices on a petition by the clinics. Chief Justice John Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. dissented without comment.

“We’re asking the Supreme Court to step in again, to reaffirm their own precedents and put an end to these sham laws that do nothing to improve women’s health care,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.

The clinics’ petition, filed by attorneys with the Center for Reproductive Rights, Morrison & Foerster and Austin firm O’Connell & Soifer, asks the high court to review and permanently block requirements that all abortion providers obtain local hospital admitting privileges within 30 miles of the clinic and that every reproductive health care facility offering abortion services meet the same hospital-like, building standards as an ambulatory surgical center.

The clinics contend that the Fifth Circuit was wrong in its interpretation of the standard announced by the Supreme Court in 1992 for determining whether an abortion regulation creates an “undue burden” on a woman’s right to have an abortion. The “undue burden” test was announced in Planned Parenthood v. Casey.

They say the circuit courts are divided on whether, when reviewing a law that regulates abortion on the basis of women’s health, a court must examine the extent to which the law actually promotes women’s health in determining whether the burdens it imposes on abortion access are undue. The Seventh and Ninth circuits, they contend, say yes, but the Fifth Circuit says no.

Under the Fifth Circuit’s approach, a law regulating abortion access must be sustained if “any conceivable rationale” exists for its enactment. That position “cannot be reconciled with this court’s decisions,” the clinics tell the high court, and renders the Casey standard “toothless protection” for the right reaffirmed in that precedent.

“Further, the Fifth Circuit’s failure to find that the abrupt closure of more than 75 percent of Texas abortion clinics would create substantial obstacles to abortion access makes a mockery of the standard articulated in Casey,” they write in the petition.

The justices have had pending since February a petition by the state of Mississippi. A different Fifth Circuit panel in July 2014 upheld an injunction blocking that state’s admitting-privileges requirement, which, if enforced, would have closed the only remaining abortion clinic in the state. The following November, the full Fifth Circuit declined to hear the state’s appeal.

The Mississippi petition is Currier v. Jackson Women’s Health Organization. The Center for Reproductive Rights also represents the Jackson clinic.

IMAGE: People demonstrate in front of the Whole Women’s Health clinic Saturday, October 4, 2014, in McAllen, Texas. Credit: Joel Martinez/The Monitor via AP

For more on this story go to: http://www.nationallawjournal.com/id=1202736374152/Texas-Abortion-Clinics-Ask-Supreme-Court-to-Review-Restrictions#ixzz3kmEOJqd5