USA TODAY International Edition
Abortion restrictions flood Supreme Court
Some cases denied, but more on way
WASHINGTON A steady stream of abortion cases are heading toward the Supreme Court, making it only a matter of time before the justices are likely to consider a new wave of state restrictions.
Although the justices have refused to consider two major cases from Oklahoma in the past two weeks, more states are seeking the high court’s blessing for restrictions that have been struck down by state and federal appeals courts.
As conflicting decisions at those courts pile up, it becomes more likely that the justices will agree to consider laws such as those banning abortions after 20 weeks, regulating the use of abortion- inducing drugs, imposing restrictions on clinics and doctors, and requiring that women receive counseling and testing before ending their pregnancies.
“It’s a pivotal moment,” says Caitlin Borgmann, a City University of New York law professor who blogs on abortion rights. “The restrictions are now getting to a point where they’re actually shutting down clinics.”
The court already has on its January calendar a challenge to Massachusetts’ 35- foot buffer zone around abortion clinics. Early next month, justices are likely to grant another case challenging the rule under President Obama’s health care law that nearly all employers provide insurance coverage for contraceptives.
The court refused Tuesday to consider Oklahoma’s appeal of a state Supreme Court ruling striking down a requirement that women have ultrasound tests performed, displayed and explained before getting abortions. But a North Carolina case working its way through lower courts eventually could reach the justices.
Last week, the court turned away another Oklahoma appeal of a decision striking down a law that bans off- label uses of abortion- inducing drugs that are commonly prescribed by doctors. That issue could resurface in a Texas case.
Whatever cases the justices do agree to hear, they will offer the court a chance to clarify its 1992 ruling in
Planned Parenthood v. Casey, which upheld abortion rights but gave states broader authority to impose restrictions such as 24- hour waiting periods and parental consent.
“The stakes are higher for both sides,” says Teresa Collett, a law professor at the University of St. Thomas in Minnesota who had hoped to defend Oklahoma’s mandatory ultrasound law at the Supreme Court.
Since its landmark 1973 decision in Roe v. Wade established a woman’s right to abortion, the Supreme Court has revisited the issue on a sporadic basis, and limits have increased.
A 1980 case restricted the use of Medicaid funds to cases involving rape, incest or the woman’s health.
Casey approved a range of restrictions in 1992. And in 2007, the justices upheld a federal ban on “partial- birth” abortions, usually performed between 20 and 24 weeks of pregnancy.
Since then, state restrictions have multiplied. In 2011, 92 provisions passed in 24 states. Last year there were 43 more, according to a survey by the Guttmacher Institute, a sexual and reproductive health think tank that supports abortion rights. Among the top cases:
A Texas law banning most abortions from drugs such as RU- 486, and requiring that doctors who perform abortions get hospital admitting privileges. A district court judge struck down the hospital provision, but an appeals court said it could take effect pending the state’s challenge. That ruling is now before the Supreme Court.
An Arizona law banning most abortions after 20 weeks of pregnancy, when the fetus may feel pain. That is before the fetus becomes capable of surviving outside the womb, making it a direct challenge to Roe and
Casey. Similar laws are being challenged in Idaho and Georgia.