The Supreme Court is expected to rule next year on a years-long debate on the power of state legislatures to regulate abortion.
The court decided Friday to take up a challenge to a 2013 Texas law that requires abortion clinics to meet ambulatory surgical center requirements and force doctors who perform abortions to have admitting privileges at a local hospital.
The question is whether the law is a far-reaching obstacle to providing abortion services or a state trying to improve care for women getting the procedure.
Related Story: http://www.washingtonexaminer.com/article/2575923
The stakes are high, as several other states are pursuing similar measures. Some states, such as Oklahoma and Alabama, have tried to pass similar laws but have been blocked by the courts.
Mississippi had a petition before the court to hear a challenge over its law, but the court did not take up that case. Another federal ruling is expected for a similar law in Louisiana.
Primarily at stake in the Texas case is a 1992 compromise set forth in the Supreme Court case Planned Parenthood v. Casey. That case found that any restriction on abortion has to be in the interest of protecting women’s health or the potential life. The court used the phrase “undue burden” to describe any state regulations that restrict access to abortion.
The court’s decision could go beyond the Texas law.
The justices could decide to scrap the “undue burden” and create an entirely new standard for measuring the constitutionality of such regulations, said Katherine Franke, law professor at Columbia Law School.
If the court scraps Planned Parenthood v. Casey, it could severely restrict access to abortion because a large percentage of women wouldn’t be able to obtain abortions, one legal professor and pro-choice advocate said.
“A large percentage of American women — anyone who does not have significant resources and the ability to travel large distances, take time off work, or who is not lucky enough to live in New York City or another large, liberal urban enclave, etc. — will be unable to obtain abortions,” Priscilla Smith, law professor at Yale Law School and a pro-choice advocate, wrote in an email.
But a pro-life legal scholar argues the Texas law wasn’t put in place to restrict abortion access.
The 2013 law was created for the “safety of women seeking abortions. It is not about restricting them,” said Elizabeth Flattery, legal scholar for the conservative think tank Heritage Foundation.
“This law is being painted as an outlier and really extreme but it really isn’t that extreme,” she said.
She added that state legislatures could feel more secure in making these types of reforms without being concerned about what the Supreme Court will do.
The requirement for doctors to have admitting privileges was established to ensure that an abortion provider could accompany a patient to the hospital if she had complications, Flattery added.
Flattery noted that the ambulatory surgical center requirements are not trying to shut clinics down, but “perhaps the clinics should be trying to improve their cleanliness and get up with the new standards.”
Over the past several years, the number of abortion clinics in Texas shrank from 41 to about 18. If the law goes into effect, the number would drop to 10.
The legal experts do agree that the case is highly unlikely to overturn Roe v. Wade, the seminal 1973 decision that legalized abortion in the U.S.
For one thing, perennial swing vote Justice Anthony Kennedy has signaled in previous cases his desire to preserve access to abortion, Smith said.
Kennedy also “cares deeply about precedent and the court’s reputation,” Franke said.
“The justices are not presented with the opportunity to overrule Roe v. Wade,” added Flattery.
