Supreme Court to Hear Texas Abortion Case This Week

Illustration by Jason Stout

On Wednesday, March 2, anyone interested in the future of reproductive health will be intently focused on the U.S. Supreme Court, where the most pivotal abortion rights case in more than two decades will be heard – and it all centers around a law born in the Texas Capitol.

Oral arguments in Whole Woman’s Health v. Hellerstedt (formerly v. Cole), the case filed by abortion providers challenging part of House Bill 2, a draconian set of Texas abortion clinic restrictions, are expected to take place at SCOTUS this week, after nearly three years of bouncing around the lower courts since the bill’s inception in 2013. As it stands, the case carries the potential to dramatically scale back constitutional guarantees enshrined in Roe v. Wade and grant states nationwide increased power when it comes to regulating abortion care.

The long-awaited battle takes aim at two provisions: a rule that requires physicians to obtain admitting privileges at a hospital within 30 miles of where the procedure is performed, a difficult task for clinics due to political and logistical barriers from nearby hospitals. It also challenges a requirement that forces clinics to transform into ambulatory surgical centers (ASCs). The changes include expanding hallways and adding janitor closets, seen by providers and major health organizations as wholly unnecessary. They also come with a hefty price tag (up to $3 million in construction costs) that would bankrupt the mostly modest, independent clinics in the state. The law has already led to the closure of more than half the state’s abortion clinics, now down from 41 to 19 clinics. SCOTUS issued a temporary halt of the ASC rule in June but if ultimately upheld, it would shutter all but 10 clinics in a state with 5.4 reproductive-aged women, devastating the already fragile women’s health network in Texas. In Austin, two of the previous four abortion clinics remain after HB 2 today; if the ASC rule in enacted, just one ASC clinic – Planned Parenthood South – will survive. (For a comprehensive look at the law’s impact and how we got here, read “Roe's End?” Jan. 29.)

The major questions justices will grapple with this week: Do states need to show their intent when regulating abortion and what constitutes an undue burden on women seeking abortion access?

In the 1992 seminal abortion rights case Planned Parenthood v. Casey, SCOTUS reaffirmed a woman’s right to abortion as granted in Roe while also allowing states wider latitude in restricting the procedure. However, the 5-4 ruling prevents states from crafting laws that have the “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Abortion laws must actually “further the health or safety of a woman,” justices wrote. Lawmakers have cast the regulations as a means to protect the health and safety of women, but as evidenced by their overtly anti-choice stance and public proclamations to rid the state of abortion access, plaintiffs and reproductive rights advocates argue the Legislature’s true intent is far from their ostensible one. Moreover, several non-partisan health organizations like the American Medical Association and the American College of Obstetricians and Gynecologists filed briefs with the court in January strongly cautioning that the rules are not only needless but potentially threatening to women’s health.

The notoriously conservative 5th Circuit Court of Appeals (which has continually upheld HB 2) gave carte blanche to the GOP-dominated Lege but other circuit courts have diverged, arguing states must justify their abortion restrictions, especially in light of the opposition from the medical community – the high court justices will need to figure out if they must compel the state to defend its motives. (In other words, can a state bullshit its way into regulating abortion or will they need to prove there is a warranted medical rationale?)

SCOTUS must also determine whether the laws pose an "undue burden" on women, the test applied in Casey that balances the state's interest in protecting fetal life with the ability of women to access their constitutional right without interference. It also will have to provide much needed clarity on what constitutes an undue burden.

“Plaintiffs argue you have to show enough of the health benefits to offset the restrictions and limited access. And here, the health gain is so slight and doesn’t contribute much to what is already a very safe procedure,” says John Robertson, UT-Austin Law professor and chair of the Ethics Committee of the American Society for Reproductive Medicine. “The state has said no, there’s a health interest and it’s not the appropriate role for the court to question what the Legislature has already determined.” Typically, SCOTUS allows state Legislatures wide discretion, says Robertson, but not so much when it comes to fundamental rights, like terminating a pregnancy. “They should be able to look more closely at the competing interests here,” he says.

Abortion providers point to the many barriers women now face due to the law, including the fact that the number of women forced to drive at least 100 miles for abortion care more than doubled to roughly 1 million as clinics shuttered in large swaths of the state. The cost of child care, time off work, lodging, increased wait times for appointments (up to 20 days in some cases), and multiple trips to the clinics – due to the state’s 24-hour sonogram law and medication abortion rules in HB 2 – add to the burden, which has hit low-income and minority women the hardest. The state, on the other hand, minimized the burden abortion-seeking women face, even suggesting West Texas women can venture to New Mexico for the procedure (however, the neighboring state doesn’t enforce the same purported safety rules found in HB 2, calling the state’s true intent into question.) The 5th Circuit supported the state’s logic and overturned federal district judge Lee Yeakel’s ruling, which said the law would "create an impermissible obstacle" to abortion access and "operate for a significant number of women in Texas just as drastically as a complete ban on abortion."

While the recent death of Justice Antonin Scalia – an anti-choice stalwart who advocated for the repeal of Roe v. Wade – assures one less vote to uphold HB 2, it doesn’t change the fact all eyes are on Justice Anthony Kennedy, seen as the swing vote. With liberal-leaning Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg expected to reaffirm abortion rights and conservative-leaning Justices Samuel Alito, Clarence Thomas, and Chief Justice John Roberts slated to side with the state, the future of reproductive health laws could all come down to Kennedy. Kennedy has continually upheld abortion restrictions, notably in Gonzales v. Carhart, a 2007 case that supported a nationwide ban on partial-birth abortion, but has stopped short of moving to completely overturn Roe. In the Casey opinion Kennedy writes, “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” Another hopeful signal for abortion rights advocates: Kennedy joined liberal justices in stopping part of HB 2 from taking effect last summer.

“It’s hard to predict how Kennedy will go,” says Cary Franklin, a professor of constitutional law at UT-Austin. “He’s not generally sympathetic to abortion rights, he often upholds restrictions. But as a co-author of Casey, he presumably believes imposing substantial obstacles to access is unconstitutional. Does he think Texas has pushed too far? We’ll soon see.”

In the event Kennedy sides with the conservative justices this time, Texas would suffer yet other states would remain mostly unaffected. A 4-4 decision would allow the 5th Circuit’s last ruling upholding HB 2 to stand, leaving the state with just 10 clinics; however, no national precedent would be set, so most other states would be largely safe from the ruling. But legal observers say it’s highly likely a similar case would reach the high court soon enough, as nearly 300 abortion restrictions have been adopted since 2010 and many have been met with legal challenges. Franklin says there’s also the (slim) possibility justices will ask to rehear the case after Scalia’s vacancy is confirmed – likely some time next term. If so, the outcome will depend on the politics of Obama’s nominee, already promised an uphill battle to confirmation by Republicans, who have vowed to prevent the sitting president from changing the ideological makeup of the court.

Mary Tuma will be at the Supreme Court this week covering the hearing. Follow her continuing coverage online and in print.