Texas Abortion Clinic Rules Questioned at U.S. High Court

Medical equipment is seen in a procedure room at the Whole Woman's Health abortion clinic in San Antonio, Texas, on Feb. 16, 2016.

Photographer: Matthew Busch/Bloomberg

U.S. Supreme Court justices revealed a deep divide in their first abortion argument in almost a decade as a pivotal member suggested he might not be ready for a definitive ruling on a Texas law that puts new restrictions on clinics.

In a fast-paced session that ran 25 minutes beyond its allotted hour, the justices started with a discussion of potential procedural obstacles and finished with a barrage of skeptical questions about the law from the court’s liberal wing.

Texas says its rules protect patient safety. Opponents of the law contend that the real aim is to reduce abortions and that three-quarters of the state’s clinics would have to close.

“What is the legitimate interest in protecting their health?” asked Justice Ruth Bader Ginsburg. “As far as we know, this is among the most safe, the least risky procedures, an early-stage abortion.”

Justice Anthony Kennedy, the court’s swing vote on abortion, raised the possibility of returning the case to a federal trial court to look more closely at the law’s impact.

At other points, he joined his more liberal colleagues in questioning whether any health benefits from the law were worth the burdens it placed on women seeking abortions. Kennedy said he wasn’t sure whether one of the law’s effects -- its reduction in the number of pill-induced abortions -- was “medically wise.”

The 2013 law would require clinics to be equipped and operated under the strict rules that govern surgical centers. Another part of the law, which is partially in effect, requires all abortion doctors to have admitting privileges at a local hospital.

‘Appalling Violations’

Texas Solicitor General Scott Keller said the measure was a legitimate effort to protect women’s health. He said the law was enacted “in the wake of the Kermit Gosnell scandal,” referring to the Philadelphia doctor who performed late-term abortions in a squalid clinic and was eventually convicted of murder.

Keller drew support from Justice Samuel Alito, who said Texas inspectors had found “appalling violations” at clinics, including “holes in the floor where rats could come in.”

Justice Elena Kagan said those inspections showed that Texas already had tools to prevent a situation like Gosnell’s.

Republican Push

The dispute is potentially the biggest abortion case since 1992, when the court reaffirmed the constitutional right to end a pregnancy. It will help determine the fate of more than 200 abortion restrictions enacted since a Republican-led push began in 2011. Those laws include limits on drug-induced abortions and bans on procedures after specified points in a pregnancy.

The dispute has taken on a new shape after Justice Antonin Scalia’s unexpected death. His absence eliminates the possibility of a 5-4 anti-abortion victory that would have nationwide implications.

The most anti-abortion forces can get now is a 4-4 split, which would leave intact a federal appeals court decision largely upholding the Texas law but wouldn’t set a nationwide precedent. The high court is scheduled to rule by June.

The session drew throngs of sign-toting demonstrators on both sides of the issue. An hour before the hearing began, abortion-rights supporters spilled beyond the sidewalk in front of the Supreme Court, onto the street that separates it from the Capitol.

‘Extreme’ Law

Stephanie Toti, the lawyer representing the clinics and doctors challenging the law, said the state must show that the regulations actually further its professed objective and that the health benefits outweigh the burdens on women.

U.S. Solicitor General Donald Verrilli, the Obama administration’s top courtroom lawyer, said the Texas law was “much more extreme” than any measure the high court had considered since the 1992 ruling. The 1992 ruling said the states could regulate abortion as long as they don’t place an “undue burden” on access.

They got backing from Kagan, who suggested she wasn’t prepared to defer to lawmakers’ medical judgments. She asked Keller whether lawmakers could require that every abortion be performed in a facility as good as Massachusetts General Hospital.

“So every abortion facility has to hit the standards of MGH,” she said to Keller. “That would be all right?”

Chief Justice John Roberts said the court shouldn’t try to balance the health benefits of the law against the impact it has on women seeking to have an abortion. He that as long as the state had a rational reason for the law, the only issue was whether it restricted abortion access too much.

“What difference does it make what the purpose behind the law is in assessing whether the burden is substantial or undue?” he asked.

Little Deference

Roberts may be in the minority on that issue. Kennedy and the four liberal justices all questioned whether the state should get that level of deference.

“The slightest benefit is enough to burden the lives of a million women,” Sotomayor said to Keller. “Is that your point?”

The Supreme Court has already intervened three times in the case, blocking the surgical-center rules while the litigation went forward but letting the admitting-privileges requirement take effect in most of the state.

Kennedy was in the majority on each of those emergency orders, and he has a complicated history on abortion rights. He was a co-author of the 1992 opinion but also wrote the 2007 decision that upheld a federal ban on a procedure opponents called “partial-birth abortion.”

Procedural Issues

In Wednesday’s case, he was as interested in the procedural aspects as the core questions about abortion rights. In addition to asking about returning the case to a trial judge, Kennedy asked whether that judge would have authority to put the law on hold for two or three years to see if abortion providers could create additional capacity.

Kennedy also questioned whether the abortion clinics had the right to file a second lawsuit after an earlier one failed to overturn the admitting-privileges requirement.

Texas is one of 10 states with admitting-privileges requirements and one of six that require clinics to meet surgical-center standards, according to the Center for Reproductive Rights, which is representing the clinics and doctors. A number of other states have less stringent requirements.

The Texas case is Whole Woman’s Health v. Cole, 15-274.

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