Texas abortion case

High court to hear 'watershed' Texas abortion case

The most significant abortion case to come before the court since 1992, will be argued before 8 justices Wednesday. 

By Jennifer Haberkorn

The Supreme Court this week will hear arguments on whether Texas can limit abortions to surgical centers and to doctors affiliated with nearby hospitals — potentially reshaping the national landscape on abortion during a presidential election year.

Eight justices will hear oral arguments Wednesday in Whole Woman’s Health v. Hellerstedt, the most significant abortion case to come before the court since 1992, and among the most significant constitutional tests since the court upheld abortion rights in the landmark 1973 Roe v. Wade ruling.

“This is a watershed moment in the battle for reproductive rights,” said Nancy Northup, president of the Center for Reproductive Rights, the law firm representing the Texas clinics challenging the law.

The ruling is likely in late June — just weeks before the Democratic and Republican conventions in a volatile election year when the court itself has become part of the political narrative since the death of Justice Antonin Scalia, a fervent opponent of abortion.

The arguments come against a backdrop of hundreds of state laws that restrict abortion, leaving swathes of the country without clinics. In Texas, more than half the state’s 41 clinics have closed since provisions of the far-reaching law have taken effect. If the remaining contested provisions are upheld, only about 10 would remain, mostly in cities.

The court’s ruling in the case could more clearly define how far states can go to regulate doctors and clinics without creating “an undue burden” on women — a criteria the justices created in 1992 in Planned Parenthood v. Casey. Or if they deadlock 4-4, with Scalia’s seat vacant, an appellate court’s decision upholding of the Texas law would stand and the high court’s decision would apply only in a handful of states, with the possibility of a rehearing when a ninth justice is seated. The court could also hold off issuing any decision this term in anticipation of a full court next year after a new president nominates his or her choice.

Many of the state restrictions already upheld by the court affect pregnant women’s access to abortion, for instance, by imposing mandatory waiting periods or requiring parental notification before underage girls can get the procedure.

But in recent years, states like Texas have directly targeted the clinics and physicians who provide abortions. The result of those laws is some clinics are struggling to remain open.

The law’s defenders say the rules are designed to ensure that abortion clinic standards are up to par and guarantee women’s safety.

But the notion that the rules promote safety is disputed by more than a dozen prominent medical groups, including the American Medical Association and the leading obstetrics and gynecology association. The rules, they say, are about shutting down clinics, not ensuring better care.

Whether the court finds the standards protect health is crucial since the Casey decision defined “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” as undue burdens.

Two provisions in the Texas law are at issue in this case. First, Texas would require that physicians do abortions only in ambulatory surgical centers which must meet strict building and regulatory standards. For instance, corridors have to be a certain width and abortions have to be done in surgical suites. If an existing clinic can’t meet these conditions, it must close.

Whole Woman's Health owner Amy Hagstrom Miller said she has sought unsuccessfully to buy or lease existing ambulatory surgical centers to replace the clinics she owns across the state.

Beyond that, the Texas law requires doctors to have admitting privileges at a nearby hospital — which can be difficult, if not impossible, to get in communities where anti-abortion sentiment runs high.

Whole Woman’s Health is asking the court to consider the law’s impact on Texas women’s access to abortion. Or, as Northup put it, the plaintiffs want the court to stop “the onslaught of sham laws” that do nothing to promote safety.

“The whole point of Casey is that courts are required to look at how a regulation affects the way that women make a decision and what constitutes an undue burden,” said Kathryn Kolbert, now a Barnard College professor who argued that 1992 case for Planned Parenthood.

In 1992, the Casey decision was considered a huge win for the abortion rights movement because it upheld Roe v. Wade and a women’s constitutional right to terminate a pregnancy. But it also opened the door for state regulation of abortion providers and clinics — an opening that has been forced open wider over time. One recent Bloomberg analysis found that since 2011, 58 abortion clinics in the United States have closed, though regulation is only one factor.

Abortion opponents argue the precedent that states can regulate abortion clinics, particularly to ensure safety, is well-established. As proof of the need for tougher regulation, they cite the case of Kermit Gosnell, the Philadelphia doctor who was convicted of killing babies born alive after late-term abortions. The conditions in his clinic were also found to be unsafe and unsanitary.

“The Supreme Court is being given an opportunity to unequivocally affirm that it meant what it said as far back as Roe — that states may regulate abortion to protect maternal health,” said Denise Burke, vice president of legal affairs at Americans United for Life, which helps states craft legislation. “The abortion industry doesn’t have a right to be free from appropriate regulation.”

Twenty-four states have laws that regulate abortion providers beyond what is medically necessary, according to the Guttmacher Institute, a research organization that supports abortion rights. NARAL Pro-Choice America puts the count at 44 states.

If there is a 4-4- deadlock in this case — with perpetual swing vote Anthony Kennedy joining the three conservatives — the Fifth Circuit’s ruling upholding the Texas statute would stand. But it would apply only within the Fifth Circuit and therefore not set a national precedent.

Abortion opponents note that Kennedy tends to defer to state legislatures. He has struck only one abortion restriction that has reached the Supreme Court: the requirement that a woman notify her husband before getting an abortion in the Casey decision.

Even in Casey, Kennedy waffled, according to the papers of Justice Harry Blackmun. He started out wanting to overturn Roe, but ended up crafting the opinion with Justices Sandra Day O’Connor and David Souter that reaffirmed Roe and created the undue burden test.

In the most recent landmark abortion case, in 2007, Kennedy wrote the majority opinion upholding a federal ban on so-called partial-birth abortion.

Both political parties have made abortion a centerpiece of this year’s campaign, and Senate Republicans’ flat-out refusal to consider a successor to Scalia until President Barack Obama leaves office has further inflamed passions.

On Wednesday, both sides will be rallying outside the court — House Speaker Paul Ryan plans to be there to show his support for Texas. The justices will hear one hour of oral arguments, including from U.S. Solicitor General Don Verrilli, who represents the Obama administration in support of Whole Woman’s Health.

For abortion rights supporters, the Whole Woman’s Health case could allow the court to address the 1973 ruling’s unfinished business.

“Every two years, I see this layer upon layer of barriers [passed by the Texas Legislature] that another group of women can’t overcome,” said Hagstrom Miller. “Even though I have been extremely committed to complying with the regulations [to remain open], we can’t forget to pick up our heads and say, ‘Look what’s happened over time.’”