The Supreme Court takes up its most far-reaching case on abortion rights in nearly a quarter century March 2, with the fate of abortion restrictions in many states on the line.
Depleted by the death last month of Justice Antonin Scalia, the eight-member court will consider a challenge mounted by Texas abortion clinics against a law that threatens to leave only 10 clinics operating in a state with 5.4 million women of reproductive age.
Abortion rights proponents and opponents planned major demonstrations outside the court during the oral argument, while inside lawyers for the state and clinics seek to sway a single justice — Anthony Kennedy, who holds the deciding vote between four liberal justices and three other conservatives.
The most immediate impact of the case will be felt in Texas, where more than 40 abortion facilities have dwindled to 18 under restrictions that set tougher operating standards for clinics and require doctors performing abortions to have admitting privileges at area hospitals. If the restrictions are upheld, additional clinics will close.
Without Scalia, however, 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 court’s liberal justices strike down any part of the law, on the other hand, the decision could implicate similar abortion restrictions imposed by conservative legislatures in other states. Such a ruling could be the biggest victory for supporters of abortion rights since two prior landmark decisions: Roe v. Wade, which legalized abortion in 1973, and Planned Parenthood v. Casey, which set the current 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 some 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’s concerning operating standards, but courts have blocked several of those from taking effect.
What the justices must determine from reading lower court rulings and scores of briefs submitted on both sides, as well as from the March 2 hearing, is whether the restrictions improve women’s health or represent an “undue burden” to their right to an abortion.
Abortion rights advocates say that 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. But state officials and abortion opponents say the clinics that are not threatened will provide superior treatment and can adequately serve the state.
Among about 80 briefs submitted to the court are several in which women recounted their own abortion experiences — successful lawyers and professionals defending the decisions they made early in life as well as others who say they came to regret the procedures.
The last case involving the medical procedure was decided in 2007, when the justices upheld a federal law banning late-term — so-called “partial birth” — abortions. Kennedy wrote the 5-4 opinion, famously asserting that “some women come to regret their choice to abort the infant life they once created and sustained.”
The Texas case focuses on the day-to-day hardships endured by women — many of them poor or Hispanic — who face difficulties obtaining abortions because of widespread clinic closures.
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. One additional clinic near the Mexican border in McAllen will be allowed to stay open, but with new restrictions that could leave only one 75-year-old retired doctor able to perform abortions. The only clinics in El Paso would close, which could send more women across the border into New Mexico.
Those who do make it from rural parts of the state to one of the population centers often run into long waits. The longest — 15 to 20 days — are in the Dallas-Fort Worth area, according to data compiled monthly by the Texas Policy Evaluation Project. Southwestern Women’s Surgery Center in Dallas went to a six-day schedule, but women wait two to four weeks for their procedures.
But whether the Texas law is completely to blame for the clinic shutdowns is a matter of debate. One brief filed by anti-abortion faculty members from 80 colleges and universities contends the law’s impact has been greatly exaggerated.