The Supreme Court said Friday it will hear a major abortion case for the first time in nearly a decade, setting up a high-stakes conflict likely to be decided a few months before the presidential election. The case challenges a Texas law that would close three quarters of the state’s clinics.
The big question: Can states pass restrictions on abortion providers that effectively shut down dozens of clinics if lawmakers simply claim the laws advance women’s health?
At issue is a Texas law that requires doctors who perform abortions to have admitting privileges at nearby hospitals, and mandates that abortion clinics meet standards for outpatient surgery centers. The conservative 5th Circuit Court of Appeals said the law didn’t impose an undue burden on women seeking an abortion.
But the impact of the court’s decision will be felt across the country — most immediately in the handful of states, from Alabama to Wisconsin, where federal courts have temporarily put on hold similar laws that, if enacted, would close down abortion clinics in the name of health regulations.
The case marks the first time the court will consider one of the hundreds of restrictions on abortion passed on the state level in recent years. A Republican wave in statehouses in 2010 resulted in a record 288 new restrictions in the past five years, according to the Guttmacher Institute. For decades, abortion opponents have pursued an incremental strategy towards banning abortion, and the restrictions on clinics are a key part of that strategy. The pro-choice community calls the laws at issue TRAP laws, or targeted regulation of abortion providers. In Texas and Mississippi, for example, many abortion providers in more conservative areas have found it impossible to comply with the requirement to gain admitting privileges at local hospitals, which often either oppose abortion or are wary of the controversy around it. Texas and Alabama are among the states that have required that abortions take place in ambulatory surgical centers, mini-hospitals that cost millions of dollars to build.
“I am hopeful that the Supreme Court will uphold the rights that have been in place for four decades and reaffirm that every woman should be able to make her own decision about continuing or ending a pregnancy,” said Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, the lead plaintiff in the case that will go before the court.
“By forcing clinics to close, Texas legislators have multiplied the barriers women face when they need an abortion,” she added. “Texas women are forced to go to multiple and unnecessary visits at clinics that are now farther away, take more days off of work, losing income, find childcare, and arrange and pay for transportation for hundreds of miles.”
The American Medical Association and the American College of Obstetricians and Gynecologists have filed briefs in lower courts arguing that these laws don’t benefit women’s health and actually harm women by making safe and legal abortion harder to access, potentially delaying the procedure or making women likelier to take matters into their own hands.
Litigators who support abortion rights have been wary of taking cases to the court since Gonzales v. Carhart in 2007. In that case, a five-justice majority led by Justice Anthony Kennedy upheld a federal ban on an abortion procedure, named “partial-birth abortion” by legislators, even though the court had struck down a similar state law only seven years earlier. The main reason for the turnaround, Justice Ruth Bader Ginsburg implied in her blistering dissent in that case: Justice Samuel Alito had replaced Justice Sandra Day O’Connor, who had joined the liberal justices in objecting to the lack of an exception for women’s health in the earlier law.
But a ruling from the Fifth Circuit Court of Appeals upholding key provisions of Texas’s abortion law forced the hand of abortion rights advocates. Without the Supreme Court stepping in to prevent the full force of Texas’s omnibus abortion law from taking effect, the massive state would be left with 10 abortion clinics serving 5.4 million women.
In June, five justices agreed to temporarily put part of the law on hold while the clinics appeal the Fifth Circuit decision, keeping the clinics open until further proceedings. “The Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito would deny the application,” the order read, despite the fact that the justices did not have to spell out who would have allowed the clinics to close.
That order underscored what is always true of abortion cases: The power now lies in the hands of Kennedy. He co-authored the 1992 opinion that limited the barriers states can put on abortion, Planned Parenthood v. Casey, while opening the door to restrictions as long as they didn’t place an ”undue burden” on women seeking an abortion. Is driving additional hundreds of miles or having to go out of state for an abortion an undue burden? The country will soon find out.