June 10, 2023

Schneiderman: Constitution Protects A Woman’s Right To Choose, My Office Will Stand Up For This Fundamental Principle

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New York’s Friend-of-the-Court Brief Urges Court to Provide Clarity Regarding
The Appropriate Standard of Review For Evaluating Restrictions On Abortion Services

NEW YORK – Attorney General Eric T. Schneiderman yesterday announced that he is leading a coalition of a dozen states in filing a friend-of-the-court brief urging the U.S. Supreme Court to grant certiorari to review a federal appellate court decision upholding two provisions of Texas law that significantly restrict access to abortion services in that state. The provisions at issue in the case were purportedly enacted to promote the state’s interest in women’s health, but the evidence in the case established, and the federal district court expressly found, that the provisions would not in fact advance that interest and could even undermine it.

“The Constitution protects a woman’s right to choose, and my office will stand up for this fundamental principle whenever and however we can,” said Attorney General Schneiderman. “Restrictions that claim to protect the health of women but stand contrary to medical evidence unduly limit a woman’s right to choose. I urge the Supreme Court to grant review in this case to make clear the standard for determining when states have crossed the line by adopting 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 in fact serve that purpose and could even undermine it. As a result, a federal district court in Texas enjoined the provisions’ enforcement. But the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision and upheld them (except 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.

In the states’ brief, Attorney General Schneiderman argues that identifying the proper standard of review for evaluating abortion regulations enacted to promote women’s health is an important issue for the States. New York’s brief notes that states have an interest in ensuring that their health-related regulations of abortion services are subject to the proper level of judicial review, one that affords reasonable deference to legislative judgments, but not the near-complete deference afforded by the Fifth Circuit. The brief cautions that a wholly deferential standard of review may fail to give proper weight to the constitutional right to access abortion services.

Attorney General Schneiderman’s brief is joined by eleven other states: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Oregon, Vermont, Virginia, and Washington.

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