U.S. Supreme Court to Review Texas Abortion Law

November 13, 2015

The Supreme Court today agreed to review a Texas abortion law that opponents say could close three-fourths of the state’s clinics, signaling a major test for a strategy social conservatives have used to stop women from terminating pregnancies.


The Texas law regulates abortion providers in several ways, including requirements that physicians performing abortions hold admitting privileges at a hospital within 30 miles, and that clinics meet the building standards for “ambulatory surgical clinics.”


Texas clinics filed suit to block the law shortly after then-Gov. Rick Perry, a Republican, signed it in 2013. Contentious litigation has followed, with the Supreme Court stepping in at preliminary stages to block portions of the law from taking effect until the courts complete their reviews.


The abortion case joins a series of divisive social issues on the court’s docket likely to inject the justices into the debate surrounding the 2016 presidential election. Last week, the Supreme Court agreed to review contraceptive-coverage regulations under the Affordable Care Act, and in December the court will hear argument on affirmative action in university admissions.


All three issues have divided the court 5-4 between conservatives and liberals in recent years, with a single justice, Anthony Kennedy, typically casting the deciding vote.


In the Texas case, the National Abortion Federation has said the number of Texas clinics would drop to about 10 from 40 if the law is fully implemented. The surviving cinics would be concentrated in the metropolitan areas of Austin, Dallas, Houston and San Antonio, leaving swaths of the state without abortion providers, the group said.


Amy Hagstrom Miller, president of Whole Woman’s Health, the lead challenger in the case, said, “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.”


Texas Attorney General Ken Paxton, in a written statement released after the Supreme Court granted the appeal, said the law is designed to raise standards at abortion facilities. “The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities,” Mr. Paxton said. “The advancement of the abortion industry’s bottom line shouldn’t take precedent over women’s health, and we look forward to demonstrating the validity of these important health and safety requirements in court.”


Similar restrictions have been adopted in such states as Michigan, Missouri, Pennsylvania and Virginia, according to the Guttmacher Institute, a nonprofit that supports abortion rights but whose data is widely cited by both sides in the debate.


While the Supreme Court ruled in 1973 that women have a constitutional right to abortion, in 2007 the justices voted 5-4 to uphold a federal statute outlawing a specific late-term abortion procedure. The 2007 opinion, Gonzales v. Carhart, emboldened conservatives in state legislatures to enact measures designed to drive abortion clinics out of business without banning the procedure.


Justice Kennedy, who previously has voted to uphold abortion rights, in the Carhart ruling was open to legislative moves to restrict the procedure. With the remaining eight justices evenly split on abortion rights, the Texas case may show how much leeway Justice Kennedy is prepared to give states seeking to do so.

The stage was set for the Supreme Court to review the Texas law in June, when the Fifth U.S. Circuit Court of Appeals in New Orleans reversed a federal district judge who had blocked the challenged provisions.


U.S. District Judge Lee Yeakel in Austin had found that the admitting-privilege and surgical-center requirements violated Supreme Court precedent by imposing restrictions that burdened abortion rights without medical justification. Judge Yeakel said the measure would put abortion out of reach for some women and require many others to undertake distant travel to obtain the procedure.


A three-judge panel at the Fifth Circuit unanimously reversed Judge Yeakel. U.S. Circuit Judges Edward Prado, Jennifer Elrod and Catharina Haynes, who like Judge Yeakel were appointed by President George W. Bush, sketched out what they viewed as a new, more-restrictive approach to abortion that Justice Kennedy introduced in the 2007 Carhart case.


In essence, the Fifth Circuit held courts must defer to the legislature as long as it has a rational basis for the statute. The appeals court found the Texas legislature’s asserted reason to protect women’s health—was rational, even if it ran counter to the views of the medical profession.


In a friend of the court brief, the American Medical Association, the American College of Obstetricians and Gynecologists and other professional organizations told the justices that the Texas restrictions serve no medical purpose.


The Fifth Circuit also found courts should defer to legislative judgments regarding the burdens the restrictions imposed on women seeking abortions.


The case likely will be heard early next year, with a decision expected before July.


Article provided by The Wall Street Journal and written by Jess Bravin at jess.bravin@wsj.com



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