Ground zero for fight over reproductive rights across America: Texas fight for right to abortion goes to Supreme Court

Predicament of clinic in Austin deplored by abortion rights advocates nationally – and celebrated by an increasingly emboldened pro-life lobby

A 'Stand With Texas Women' rally in Austin, Texas earlier this year (Rex Features)

The abortion clinic on the south side of Austin has the look of a well-funded community centre or local library with its pleasant sandstone façade and expansive car park. It does not hide what it’s there for. Atop a high roadside pole, a large sign with blue-and-white lettering announces: “Planned Parenthood. Care, No Matter What”.

Not so, however. For the past 10 days, this clinic and scores like it across Texas have not been able to provide the one procedure that many women come here seeking - terminations of their pregnancies. It is a right supposedly guaranteed them, with certain restrictions, by the landmark Roe v. Wade US Supreme Court ruling of 1973. This clinic in Austin remains open, but only to offer other healthcare services like cervical cancer screenings or birth control counselling.

It is a predicament deplored by abortion rights advocates nationally – and celebrated by an increasingly emboldened pro-life lobby – for which some relief may or may not come today. That depends on Antonin Scalia, one of nine justices for the US Supreme Court, who has given the state of Texas until this morning to explain why he should not allow this and the other affected clinics to resume offering abortions, at least for the time being.

All this traces back to early July when the Republican-controlled state legislature in Austin passed a law, the impact of which is to seriously narrow access to abortions. An earlier attempt in June was famously blocked by an 11-hour filibuster by a Democrat state senator, Wendy Davis. (On the back of her fleeting success, Ms Davis is now running to become governor next year.)

Thus Texas effectively made itself the ground zero of the gathering fight over reproductive rights all across America which threatens slowly to break down the walls of Roe v. Wade, if not by making abortions illegal again, then certainly by making the option of safely ending unwanted pregnancies far more difficult to exercise.

Supporters of the law argue it is merely an attempt improve the medical protections of women in Texas. Most importantly, it requires that any physician conducting abortions should have so-called ‘admitting privileges’ in a major hospital not more than 30 miles from the clinic in question. The theory is straightforward: should anything go wrong in a procedure the doctor can instantly refer patient to that hospital for a more comprehensive care.

Its opponents, including Planned Parenthood of Greater Texas, instantly sued to have the law overturned on the grounds that it is unconstitutional and amounts to a barely disguised attack on abortion rights. In reality, they argued, any woman suffering complications would be admitted to a nearby hospital regardless. There was jubilation when on 28 October a federal judge, Lee Yeakel, agreed and struck down parts of the law, including the admitting privileges provisions. But within just days, the Fifth Circuit appeals court in New Orleans – a panel of three judges, all women – overturned Yeakel. On 1 November the law took effect.

The impact was immediate. About one third of all abortion clinics in Texas stopped offering terminations precisely because their physicians do not have the required admitting privileges and can’t get them. It is an unprecedented state of affairs. While several other states, including Mississippi and Wisconsin, have passed similar laws in recent months, one by one they have been blocked from taking effect by court-imposed injunctions.

No surprise, therefore, that on a recent afternoon the car park at the south Austin Planned Parenthood clinic, with about 75 spaces, had only a handful of cars (one with a large red and white ‘Wendy Davis for Governor’ bumper sticker). “It is just heart-breaking and devastating for our patients,” Danielle Wells, a spokeswoman for the clinic, told The Independent. She said that over the three days after the Fifth Circuit ruled the staff here had to telephone roughly a hundred women to cancel appointments. “Some of them were angry and others were scared. They don’t know how they are going to make the long trip to an alternative location where abortions are still being offered. Because of this restriction a very personal decision has been taken out of their hands.” The law, she added, means about one in three women who want an abortion in Texas will now have serious trouble getting one.

Marni Evans, a consultant on sustainable architecture in Austin, was one of those scheduled for an abortion just as the clinic was forced to stop performing them. As is already required in Texas, she had already undergone a transvaginal ultrasound, a procedure that shows the foetus to the patient, who then is asked if she wants to change her mind. In a conference call with reporters organised by Planned Parenthood, Ms Evans explained she had decided to end her pregnancy because she and her fiancée, John Lockhart, don’t have the wherewithal for a baby.

“We can barely afford our own healthcare, let alone a child,” she said. “We want to start a family some day, but we just can’t do it now.” Seven weeks pregnant at the time, she was knocked flat when she got the call saying her appointment had been cancelled. “I was devastated,” she said. “This was my decision to make, but I am still pregnant today because that decision was taken away”. Ms Evans, 37, said that she and her fiancé intended to use air miles they had been saving for a honeymoon to fly to Seattle to have the procedure there. (Later, in a voice message, Mr Lockhart said she had in fact found an alternative provider nearer to home and was recovering.)

The proffering of Ms Evans by Planned Parenthood may have backfired somewhat; the internet lit up at once with indignant pro-life activists depicting her as spoiled and self-indulgent, perfectly summing up why the barriers to abortions should be higher. If she didn’t want a family, they raged, at least let the child live and offer it for adoption.

Karen Garnett, executive director of the Catholic Pro-Life Committee, called the appeals court decision ruling “an epic victory for life”. Writing to the Dallas Morning News, she added: “While we knew the abortion industry would fight the implementation of this historic law protecting women and their unborn children, we were most hopeful that the will of Texans would be respected and honoured by the courts”.

The case against the state brought by Planned Parenthood and others will now be heard by the Fifth Circuit court early next year. Depending on the outcome, it may very well become the first of the major state-level abortion fights to reach the full US Supreme Court, possibly even during its current term. That would present the justices with a crucial test on the issue that so divides the country – will they stand by Roe v. Wade or allow it to be diluted?

In the meantime it is Scalia’s job this morning to determine if clinics like this one can at least resume offering abortions until the case finally gets resolved. “We are praying so,” Ms Wells says with a heavy sigh.