Texas’ abortion foes see opening
Reconfigured Supreme Court could get test case from state
AUSTIN — Abortion opponents in Texas are convinced they are in a prime spot to lead a nationwide effort to chip away at the landmark Supreme Court ruling that made abortion legal in the United States more than 40 years ago.
The optimism comes after Supreme Court Justice Anthony Kennedy, 81, announced last week that he was retiring from the court. President Donald Trump has said he will nominate a new justice for the court later this month and the Senate is expected to have that person confirmed before the November elections, according to Texas U.S. Sen. Ted Cruz.
While other Republican-dominated states have passed laws that could become the first true test case on the topic for a newly configured Supreme Court, key voices in the fight against legal access to abortion in Texas say they have a case in appellate court that could be “the big one.”
“This is the landmark decision in the making,” state Sen. Charles Perry, R-Lubbock, said of a 2017 Texas law that he was key in passing, which banned the most common procedure used for second trimester abortions. The law was challenged by the Center for Reproductive Rights and Planned Parenthood and was struck down by a federal court in November.
But even if the Perry law is not the one, Texas lawmakers say they are better positioned than ever going into the next legislative session to
more aggressively push to further restrict the ability of women to get abortions. That is because with House Speaker Joe Straus not seeking re-election, they foresee having a socially conservative leader who will be more willing to take up the fight with them. Straus is against abortion and has pointed to legislation like a bill to require women to view a sonogram of the fetus as evidence of his opposition to abortion. Still, Texas Right to Life has considered Straus and his leadership team opponents to their efforts.
After Kennedy announced his retirement, “we received an avalanche of texts and emails from our supporters and legislators saying, ‘Let’s go,’ ” said John Seago, legislative director for Texas Right to Life.
Not assured of outcome
But the addition of a new Trump-appointed justice doesn’t mean Roe v. Wade is destined to be overturned. During his own confirmation hearings, Chief Justice John Roberts did not signal that he was itching to overturn the 1973 landmark ruling. “Roe v. Wade is the settled law of the land,” Roberts offered during his 2005 confirmation.
And experts warn that if the Texas law were upheld, it would essentially bar women from getting abortions after the first trimester of a pregnancy.
Still, abortion opponents say the combination of a new court and a new legislative dynamic may be just be what Texas needs to take the lead on the issue. While Texas has a history of passing some of the nation’s most restrictive abortion laws, many conservatives in the Legislature are convinced the state should be doing even more.
“Texas should be the leader when it comes to pro-life issues,” Seago said.
That’s a relatively alarming mission given how far Texas has already gone to restrict access to abortion, said Kelly Nash with the Guttmacher Institute, a research and policy organization focused on reproductive rights. She said her group already considers Texas among the “five most hostile states in the country” to abortion rights.
“Over the past decade, Texas has become a state to watch for abortion restrictions and is one of the top states when discussing the abortion debate at the state level,” Nash said.
Louisiana, Mississippi, Indiana and South Dakota are others in that group, according to the Guttmacher Institute.
Texas also has a history of adopting abortion restricting laws that don’t withstand Supreme Court review. In 2016 the high court overturned a Texas law requiring clinics that provide abortions to have surgical facilities, and mandating that doctors have admitting privileges at a nearby hospital. The Supreme Court ruled 5-3 that the law violated the Constitution. Kennedy sided with the more liberal justices in helping strike down the law.
Perry’s Senate Bill 8, which supporters called the “dismemberment” ban, was challenged in the summer of 2017 and in November U.S. District Judge Lee Yeakel ruled the new law was unconstitutional.
Attorney General Ken Paxton has appealed that ruling to the 5th U.S. Circuit Court of Appeals, which is one step away from the high court.
Seago said the briefs in the case and even the legislation itself were designed carefully to target Kennedy, who had a reputation as a swing vote on the court on issues related to abortion.
In a key 1992 ruling, Kennedy recognized a woman’s right to choose to have an abortion before the fetus can survive outside of the womb, and to obtain it without undue interference by the state. But he also confirmed the state’s authority in restricting abortion after “fetal viability” if the law contains exceptions for pregnancies which endanger a woman's life or health.
In 2007, Kennedy was the deciding vote in the Supreme Court ruling that made it legal for states to ban some abortion procedures.
‘He was our audience’
Seago, who helped Perry craft the 2017 Texas law, said it was written with Kennedy in mind.
“We wrote that legislation for Justice Kennedy,” he said. “He was our audience.”
Texas is far from the only state that is trying to end the so-called dilation and evacuation procedure. Seven other states have passed similar laws.
“This could be one that the court might want to take up,” said Carol Sanger, who teaches about reproductive rights at Columbia Law School.
But Sanger also warns the Supreme Court may be reluctant to do so because if the procedure is barred, it essentially will end the ability of women to get a later term abortion even if their health is at risk. Already the so-called partial birth abortion procedure has been banned in many states.
“If you ban both, are you not banning abortion?” Sanger said.
However the justices might handle the case, “it will be huge in showing the direction where the court will go,” Seago said.