The Supreme Court on Friday re-entered the abortion arena, as justices agreed to consider a challenge to a Texas law tightly regulating clinics that perform the procedure.
The highly anticipated case will mark the court’s first major return to the abortion issue since 2007. It will end with a probable decision in the heat of the 2016 presidential campaign and thrust 79-year-old Justice Anthony Kennedy once more into a pivotal role.
“He’s the swing vote,” predicted attorney Janice M. Mac Avoy, who wrote a legal brief for the National Abortion Federation.
After justices met in a closed-door conference Friday morning, the court announced several hours later it was granting the petition filed by challengers to the Texas law. As is customary, the justices did not elaborate on the decision.
The court, though, did not announce any decision regarding a parallel case involving a Mississippi abortion clinic law also scheduled for consideration at the Friday conference.
The Texas case involves a 2013 state law, known as House Bill 2, that requires a physician performing an abortion to have admitting privileges at a hospital within 30 miles of where the abortion is performed.
The state law also requires abortion clinics to meet standards set for ambulatory surgical centers. These range from square footage and parking space requirements to the number and placement of janitorial closets.
The still unsettled Mississippi case involves a 2012 state law that requires all physicians associated with an abortion facility to have admitting privileges at a local hospital. Two of the three doctors at the state’s only licensed abortion clinic lack local hospital admitting privileges.
A woman’s right to have an abortion prior to fetal viability was secured in the Supreme Court’s 1973 Roe v. Wade decision — a case that also came from Texas.
A subsequent 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey upheld a state’s power to regulate. States, for instance, can impose a 24-hour waiting period.
At the same time, Kennedy and his allies in the closely split 1992 decision cautioned that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”
Ambiguity surrounds the meaning of “undue burden.”
“The muddiness of the standard has opened the door to states pushing the envelope with every kind of abortion restriction imaginable, leading to the very real possibility that both ‘undue burden' and Roe itself become utterly meaningless,” said B. Jessie Hill, a professor at Case Western Reserve University School of Law.
Both the Texas and Mississippi laws do complicate the ability of women to access abortion clinics, and thereby impose a burden. Key questions for the high court will be whether this burden is “undue” and whether the state’s regulations serve a “necessary” health purpose
Operators of Mississippi’s sole licensed clinic, in Jackson, say the state law would force them to close because local hospitals won’t grant admitting privileges to the clinic’s physicians.
Clinics shut down
In Texas, the 40-plus abortion clinics that existed prior to the passage of House Bill 2 shrunk to 18 after the bill became law, and abortion providers say the number would fall under 10 if the law is upheld. The remaining clinics would be clustered in several major urban areas, forcing rural residents to drive hundreds of miles, providers say.
“The challenged regulations have no valid medical justification and would not make abortions safer,” the attorneys general for California, Washington and 10 other states declared in a legal brief.
In 2011, 73,200 women obtained abortions in Texas, according to the Guttmacher Institute, a nonprofit reproductive health organization. Texas officials contend that the stricter requirements raise the standard and quality of care and help protect the health of women.
“There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions,” the 5th U.S. Circuit of Appeals declared in upholding the Texas law.
The Center for Reproductive Rights brought the challenge to the Texas law, on behalf of a coalition of health providers led by Whole Woman’s Health, which has long operated a facility in Fort Worth. The local clinic did shut down temporarily after the Legislature acted, but then reopened following a later appeals ruling along with almost a dozen facilities statewide that had closed.
“Today, my heart is filled with hope,” Amy Hagstrom Miller, Whole Woman’s Health president and CEO, said in a statement. “Although this is the first step in a much longer process, I am hopeful that the Supreme Court will uphold the rights that have been in place for four decades.”
Wendy Davis reacts
Former state Sen. Wendy Davis, a Fort Worth Democrat, a leader in the fight against the new restrictions, predicted the state will lose its case.
“I am hopeful of a positive outcome,” Davis said on Twitter and again in an interview on the MSNBC cable news network.
Davis repeated her long-held assertion that Republicans are on a political crusade to shut down all access to abortion in Texas. She said lawmakers knowingly approved restrictions that are impossible to meet, which would enable state health officials to shut down clinics.
She agreed that the timing of the ruling will make abortion an even bigger issue in the 2016 presidential race — and she believes it will help Democrats.
U.S. Rep. Eddie Bernice Johnson, D-Dallas, agreed, saying this “burdensome law has caused women around the state of Texas to face enormous odds in obtaining needed comprehensive medical healthcare and exercising their constitutional rights to make their own reproductive health care decisions.”
Abortion opponents, led by the Texas Alliance for Life, couldn’t disagree more, calling the legislation being challenged “a well-crafted bill.”
The group says their goal is not to shut down every clinic, as their opponents contend. “While not our preference, the reality is that abortion will remain readily available in Texas and will continue to occur tens of thousands of times a year even if the Supreme Court” rules with abortion foes, the alliance said in a prepared statement.
Staff writer John Gravois contributed to this report.