Justices divided over abortion clinic restrictions
Conservative bloc has lost Scalia, and case may go back to Texas
Conservatives feel loss of Scalia. Case could go back to Texas.
WASHINGTON The Supreme Court appeared deeply divided Wednesday over the most farreaching abortion rights case it has considered in a generation, putting the fate of abortion restrictions in many states on the line.
The court’s four liberal justices left little doubt they would vote to strike down the law, so the eightmember court — depleted by the death last month of Justice Antonin Scalia — almost certainly cannot issue a decision establishing a national precedent that would set tougher standards for abortion clinics coast to coast.
Justice Anthony Kennedy, who probably holds the deciding vote, could seek to have the case returned to Texas for additional fact-finding, delaying any decision until next year at the earliest. The study could include whether the restrictions were responsible for shuttering up to 20 clinics and whether those clinics that remain open can handle the demand for abortions.
If the case is not sent back but decided on its merits, it’s more likely that Kennedy would join the liberals in ruling that the law places an undue burden on abortion access without serving a necessary medical purpose. Such a decision could impact states with similar laws.
Kennedy acknowledged the state would face a “capacity problem” if only 10 clinics are left, as the law’s challengers claim.
Many hundreds of abortion rights proponents and a much smaller number of opponents demonstrated outside the court before, during and after the oral arguments. Inside, White House officials, including senior adviser Valerie Jarrett, were among those listening to 85 minutes of debate — 25 minutes longer than had been scheduled.
What they saw was skepticism from the court’s conservatives that the law caused the clinic closures. Passed in 2013, the law set tougher operating standards for clinics and required doctors performing abortions to have admitting privileges at nearby hospitals. Since its passage, more than 40 abortion facilities in the state have dwindled to 18, and more closures are threatened.
Chief Justice John Roberts and Justice Samuel Alito said scant evidence was offered to show the law triggered the closings. They said the challengers failed to prove that the remaining clinics could not handle roughly 70,000 abortions a year — though Roberts admitted that evidence of insufficient capacity was a “statistically significant showing.”
When Texas Solicitor General Scott Keller stood to argue the state’s case, the liberal justices pounced. They accused legislators of singling out abortion for tough medical standards not required for riskier procedures, such as colonoscopies and liposuction. They said the restrictions serve no purpose and have not made abortions safer. More clinic closures would leave the state unable to handle 5.4 million women, they said.
“This is among the most safe, the least risk procedures, an early-stage abortion,” said Justice Ruth Bader Ginsburg, who arrived at the court in 1993, the year after its decision in Planned
Parenthood v. Casey said states could impose restrictions that do not represent an “undue burden” on women seeking abortions. “So what was the problem that the Legislature was responding to?”
“Increasing the standard of care is valid,” Keller said later, to which Justice Sonia Sotomayor responded, “It’s valid only if it’s taking care of a real problem.”
Without Scalia, the state probably can do no better than a 4-4 vote upholding last year’s ruling by the U.S. Court of Appeals for the 5th Circuit. That would apply to Texas, Mississippi and Louisiana but no further.
If Kennedy and the liberal justices strike down any part of the law, the decision could implicate abortion restrictions imposed by conservative legislatures in other states. Such a ruling could be the biggest victory for supporters of abortion rights since two landmark decisions: Roe v. Wade, which legalized abortion in 1973, and Casey, which set the rules for restrictions in 1992.
“This isn’t just about Texas,” Nancy Northup, president of the Center for Reproductive Rights, said on the eve of the Supreme Court showdown, noting that about 250 restrictions have been imposed across the country in the past five years. Those restrictions range from 24-hour waiting periods and parental notification laws, mostly upheld by lower courts, to bans on abortion after six or 12 weeks, which courts have blocked.
Ten states have laws restricting doctors, and six have laws as strict as Texas’ concerning operating standards, but courts have blocked several of those.
Abortion rights advocates say the burden is clear from the hundreds of miles women outside Texas’ major cities have to drive to reach a clinic and the days, even weeks, they have to wait before getting an abortion. “It is the
definition of an undue burden,” U.S. Solicitor General Donald Verrilli argued.
State officials and abortion opponents say the clinics that are not threatened will provide superior treatment and can adequately serve the state. Their argument was supported in part by Alito, who said, “There’s no evidence of the actual capacity of these clinics.”
If the law is allowed to stand, the 10 remaining clinics will be centered in four metropolitan areas — Houston, Dallas-Fort Worth, Austin and San Antonio.