Abortion law mandates rile female justices
The three question Texas regulations
WASHINGTON — The three female Supreme Court j ustices led an attack Wednesday on a Texas law that would shut down about three-fourths of the state’s abortion clinics, clashing with their conservative colleagues over what could be the court’s most important abortion case in decades.
Though supporters of the Texas law insist the state’s strict medical regulations were intended to promote health and safety, Justice Sonia Sotomayor argued they would actually hurt women. Texas lawmakers, she said, were “only targeting abortion.”
Her comments came during an intense hour-long debate over whether state legislatures, including those controlled by anti-abortion lawmakers, should have a largely free hand to regulate doctors and clinics that offer the procedure.
It is the most significant abortion case since 1992, when the justices, including Anthony Kennedy, upheld the landmark Roe vs. Wade ruling but declared states may regulate abortion as long as they do not put an “undue burden” on women seeking to end a pregnancy.
It has been unclear ever since exactly what that means. Since 2010, Republican-led states have adopted increasingly stringent abortion regulations. Now, the justices are pressed to decide whether the Texas law amounts to an undue burden for more than one million women who live 150 miles from a licensed abortion clinic.
Kennedy and several of his colleagues, however, sounded hesitant about issuing a broad abortion ruling. At one point, Kennedy suggested the court might want to send the case back to a trial judge in Texas to provide more evidence on the potential impact of the two disputed provisions.
One would require all doctors to have “admitting privileges” at a nearby hospi- tal, and a second would require clinics to meet the standards of an outpatient surgical center.
Eight states besides Texas have laws requiring doctors who perform abortions to have admitting privileges at a nearby hospital, including Louisiana and Mississippi. The court has pending appeals from both states on whether those laws can go into effect. And five states besides Texas require abortion clinics to meet the standards of an ambulatory surgical center. Most of those laws are in effect.
Aware of the stakes, the three women on the court said it was obvious to them that the Texas lawmakers had singled out abortion clinics for unduly strict regulations.
Justice Ruth Bader Ginsburg noted that one provision requires women to visit an outpatient surgical center even when they are simply taking a pill to induce a medical abortion. Many women would have to travel hundreds of miles to get there, Ginsburg said.
Texas Solicitor Scott Keller said that there may be complications, even with a medical abortion. No, not with taking a pill, Ginsburg responded. “It’s not going to occur on the spot. The complication generally arises after the woman is back at home,” she said.
Justices Sotomayor and Elena Kagan said Texas does not similarly regulate other medical procedures that are more risky, including dental surgery and colonoscopies. Doctors can perform those procedures safely in a doctor’s office, without the need for a fully equipped surgical center, they said.
Justice Stephen Breyer, another Democratic appointee, said he could not see a reasonable basis for upholding the restrictions.
Meanwhile, Chief Justice John Roberts and Justice Samuel Alito, appointees of former President George W. Bush, defended the Texas l aw. They questioned whether abortion-rights advocates had shown the new regulations had indeed shut down many clinics and would leave women with limited options.
Kennedy asked one question that hinted he may lean in favor of the challengers. He said the law’s restrictions have led to an increase in surgical abortions and a drop in the number of medically induced abortions. That “may not be medically wise,” he told Keller, a former law clerk for Kennedy.
The justices will meet Friday to vote on the Texas case. There are various possibilities, given the recent death of conservative Justice Antonin Scalia. If Kennedy votes with the four liberal justices, they could decide that the Texas law is unconstitutional. If Kennedy votes with the three remaining conservatives, the court will be evenly divided and unable to issue an opinion. The tie vote would have the effect of affirming the 5th Circuit Court of Appeals, which upheld the Texas law.
A third possibility would be to send the case back to Texas for further hearings.