Anti-Abortion Groups Argue That Restrictive Texas Law 'Prevents Discrimination' Against Women

In an amicus brief filed at the Supreme Court yesterday, the anti-abortion-rights groups Susan B. Anthony List and Concerned Women for America argue that a restrictive Texas law that threatens to shut almost all of the state’s abortion clinics is actually meant to prevent discrimination against women seeking abortions.

In the brief, written by former Family Research Council official Ken Klukowski on behalf of the American Civil Rights Union, the groups argue that HB2, the Texas law being considered in the case Whole Woman’s Health v. Hellerstedt, in fact “prevents discrimination” against women seeking abortions by “ensuring that women seeking an abortion receive medical care that is equal in quality to the medical care provided to men”:

By ensuring that women seeking an abortion receive medical care that is equal in quality to the medical care provided to men, HB2 prevents discrimination against those women. To the extent challengers to HB2 might suggest HB2 is a form of sex discrimination, it is actually a statute that prevents discrimination. As such, invalidating HB2 would carry the opposite consequence of effectuating discrimination against women.

HB2’s ASC [ambulatory surgical center] provision commands that “the minimum standards for an abortion facility must be equivalent to the minimum standards . . . for ambulatory surgical centers.” … Only women are patients at abortion facilities, but ASCs treat both women and men. This provision thus ensures that the women at one facility are entitled to the same quality of care that men at the other facility receive.

The groups conclude that “invalidating HB2 would subject women to second-class medical treatment, thus effectuating discrimination against women seeking an abortion.”

As we’ve noted, HB2 is one of a spate of state laws that have been passed in recent years by anti-choice lawmakers seeking to cut off access to abortion under the guise of protecting women’s health.

Among other restrictions, the Texas law requires that facilities providing abortions meet the standards of ambulatory surgical centers (ASCs) even, as Think Progress has noted, at facilities that provide only medication abortion and don’t perform surgeries. The Guttmacher Institute explains that ambulatory surgical centers are subject to more restrictive regulations because they generally perform riskier and more invasive procedures than surgical abortion.