The Supreme Court largely appeared skeptical Wednesday morning that Texas was concerned only with women’s health in passing new abortion provider regulations, in the biggest abortion-related case for the court to hear in nearly a decade.
The key question before the justices was whether Texas, and potentially other states, have unconstitutionally limited a woman’s right to obtain an abortion by placing new facility and hospital admitting requirements on abortion providers that are prompting many to shutter. The decision could have a ripple effect far into the future on how far states can go in regulating the controversial procedure.
“According to you, the slightest health improvement is enough to impose on hundreds of thousands of women,” Justice Sonia Sotomayor told Texas Solicitor General Scott Keller.
Little was said by swing Justice Anthony Kennedy, although he at one point appeared sympathetic to the idea that clinics eventually will be able to comply with the new regulations if given enough time.
“Regulations sometimes take years to adopt,” Kennedy said. At another point, he suggested the lower district court could delay a final decision for a few more years until it becomes clear whether clinics remain closed, as opponents of the law predict, or whether they manage to reopen.
Kennedy has supported some abortion limits in the past, including the federal ban on partial-birth abortion. But how far he’s willing to let states go in tamping down on abortion is not clear.
The law in question, passed by the Texas legislature in 2013, requires clinics offering abortion services to meet the facility standards of ambulatory surgical centers and says doctors performing abortions must have admitting privileges at a nearby hospital.
The regulations are part of a new batch of abortion laws that opponents have written and convinced state lawmakers to enact in recent years. They defend the laws by arguing they’re designed to make the procedure safer for women, as part of an overall strategy to focus the abortion fight on its effects on women and not just their fetuses.
The legal dispute is over whether the state has a health basis for enacting the regulations and whether they present an “undue burden” on women seeking an abortion by creating an environment in which it is too difficult for providers to continue operating.
The liberal justices hammered Keller on that point, asking him to explain why the reported complication rate from abortion is much lower than for procedures such as liposuction, which aren’t subject to the same safety regulations. Justice Elena Kagan said additional regulations aren’t justified just because they result in facilities making upgrades.
“I’m sure there is evidence that if every facility was as good as Massachusetts General Hospital, that would be better,” Kagan said.
Chief Justice John Roberts and Kennedy said little during the oral arguments, which lasted about an hour and a half. But conservative Justice Samuel Alito repeatedly questioned the argument from Whole Woman’s Health, the clinic bringing the lawsuit, that the Texas law is the direct cause of dozens of clinic closings.
He asked attorney Stephanie Toti to explain why the court wasn’t provided with direct evidence that either the admitting privileges or surgical center requirements were forcing clinics to close their doors, as they claim.
“There is very little evidence as to why any clinic closed,” Alito said.
The “undue burden” standard was first set forth in the 1992 case Planned Parenthood v. Casey, in which Justice Sandra Day O’Connor wrote in a majority opinion that states can regulate abortion as long as they don’t take it too far.
“Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the state reach into the heart of the liberty protected by the Due Process Clause,” O’Connor wrote at the time.
How the court rules on that question in Whole Woman’s Health v. Hellerstedt could embolden abortion opponents to keep passing more abortion regulations, if the justices rule the Texas law doesn’t present an undue burden.
But if the justices strike the Texas law, it could put a damper on their efforts to further regulate abortion services with ever-stricter laws about how, when and where a woman may obtain an abortion in the U.S.
Whole Woman’s Health v. Hellerstedt was the first major abortion-related case for the Supreme Court to hear in nearly a decade. The last one was the 2007 case Gonzales v. Carhart, where the court upheld a federal ban on partial-birth abortion.
Since then, dozens of Republican-led states have passed stricter regulations on abortion doctors and clinics. Texas’ law has stirred perhaps the most public interest, since it’s widely blamed for prompting about half the state’s abortion clinics to close.
There are about 20 clinics left, and if the justices uphold the law, that number is likely to be cut in half, at least initially until more clinics have time to comply with the regulations.
The case Wednesday was brought by Whole Woman’s Health in McAllen, Texas, an abortion provider that is part of a five-clinic chain with centers also located in Baltimore, Minneapolis, Fort Worth and San Antonio.
The U.S. Court of Appeals for the Fifth Circuit, located in Texas, upheld the lawsuit in June, ruling that the law doesn’t place a “substantial obstacle” in the way of women obtaining an abortion. Whole Women’s Health then appealed the decision to the Supreme Court, asking the justices to block the Texas law.
With the passing of conservative Justice Antonin Scalia last month, abortion opponents lost their chance for a sweeping ruling from the court upholding not just the Texas regulations, but similar laws in other GOP-led states.
Now, court-watchers expect either a split 4-4 decision, which would mean the appeals court ruling upholding the law stands, or a ruling striking it from the books altogether. A ruling is expected in early summer.
