The three female Supreme Court justices led an attack Wednesday on a Texas law that would shut down about three-fourths of the state’s abortion clinics, clashing with their conservative colleagues over what could be the court’s most important abortion case in decades.
Though supporters of the law say the state’s strict medical regulations were intended to promote health and safety, Justice Sonia Sotomayor argued that they would hurt women. Texas lawmakers, she said, were “only targeting abortion.”
Her comments came during an intense hourlong debate over whether state legislatures, including those controlled by antiabortion lawmakers, should have a largely free hand to regulate doctors and clinics that perform abortions.
It is the most significant abortion case since 1992, when the justices, including Anthony M. Kennedy, who is still on the court, upheld the landmark Roe vs. Wade ruling, but declared that states may regulate abortion as long as they do not put an “undue burden” on women seeking to end a pregnancy.
It has been unclear ever since exactly what that means. Since 2010, Republican-led states have adopted increasingly stringent abortion regulations. Now, the justices are pressed to decide whether the Texas law amounts to an undue burden for more than 1 million women who live at least 150 miles from a licensed abortion clinic.
Kennedy and several of his colleagues, however, sounded hesitant about issuing a broad abortion ruling. At one point, he suggested the court might want to send the case back to a trial judge in Texas to provide more evidence on the potential impact of the two disputed provisions.
One would require all doctors to have “admitting privileges” at a nearby hospital, and a second would require clinics to meet the standards of an outpatient surgical center.
Eight states besides Texas have laws requiring doctors who perform abortions to have admitting privileges at a nearby hospital, including Louisiana and Mississippi. The court has pending appeals from both states on whether those laws can go into effect. And five states besides Texas require abortion clinics to meet the standards of an ambulatory surgical center. Most of those laws are in effect.
The three women on the court took a lead role and said it was obvious to them that the Texas lawmakers had singled out abortion clinics for unduly strict regulations.
Justice Ruth Bader Ginsburg noted that one provision requires women to visit an outpatient surgical center even when they are simply taking a pill to induce a medical abortion. Many women would have to travel hundreds of miles to get there, Ginsburg said.
“I can't imagine what is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved,” she said.
Texas Solicitor Gen. Scott Keller said that there may be complications, even with a medical abortion. No, not with taking a pill, Ginsburg responded. “It’s not going to occur on the spot. The complication generally arises after the woman is back at home,” she said.
Justices Sotomayor and Elena Kagan said Texas does not similarly regulate other medical procedures that are more risky, including dental surgery and colonoscopies. Doctors can perform those procedures safely in a doctor's office, without the need for a fully equipped surgical center, they said.
“We know that liposuction is 30 times more dangerous [than an early-stage abortion], yet doesn’t have the same kind of requirements” in Texas, Kagan said.
Justice Stephen G. Breyer, who, like his female colleagues, is a Democratic appointee, also said he could not see a reasonable basis for upholding the restrictions.
Meanwhile, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., appointees of former President George W. Bush, defended the Texas law. They questioned whether abortion rights advocates had shown that the new regulations had indeed shut down many clinics and would leave women with limited options.
Since there would be well-equipped abortion facilities in the state's major metropolitan areas, Roberts said, it was not clear the law posed a “substantial obstacle” for women who seek an abortion.
Stephanie Toti, a lawyer for the Center for Reproductive Rights in New York, took the issue with the chief justice when he said the law furthered the state’s interest in health and safety. “The law actually undermines the interest in health,” she said, “by causing an increase in later abortions and self-induced abortions.”
In a tense exchange, Sotomayor elaborated on Toti’s argument, even after the chief justice said her time had expired.
“Thank you, counsel,” Roberts said, signaling Toti to sit down.
“I’m sorry,” Sotomayor interrupted, continuing with her questions. “Is there any other condition that by taking pills [is] required to be done in a hospital?”
A few minutes later, Roberts thanked Toti again and turned to U.S. Solicitor Gen. Donald Verrilli Jr., the Obama administration’s top courtroom lawyer.
In a brief but forceful presentation, Verrilli argued that allowing the disputed law to go into effect would mean the right to abortion “only exists in theory, not in fact” in Texas.
“Before this law took effect, there were approximately 65,000 to 70,000 abortions a year” in Texas, he said. Fewer than 10 clinics would remain open if the law took full effect, down from 40 several years ago, and the remaining 10 “performed about 14,000 [abortions] a year.”
Kennedy interjected: “About 20%.” Yes, Verrilli said.
Kennedy asked one question that hinted he may lean in favor of the challengers. He said the law's restrictions have led to an increase in surgical abortions and a drop in the number of medically induced abortions. That “may not be medically wise,” he told Keller, a former law clerk for Kennedy.
The justices will meet Friday to vote on the Texas case. There are at least four possibilities, given the recent death of conservative Justice Antonin Scalia. If Kennedy votes with the four liberal justices, they could decide that the Texas law is unconstitutional.
If Kennedy votes with the three remaining conservatives, the court would be evenly divided and unable to issue an opinion. The tie vote would have the effect of affirming the U.S. 5th Circuit Court of Appeals, which upheld the Texas law.
A third possibility would be to send the case back to Texas for further hearings. It's also possible the justices will hold on to the Texas case until next summer or longer, awaiting confirmation of a new justice to fill the ninth seat.
The court is not expected to announce a decision until June.
Also this week, the justices will probably decide on whether to allow Louisiana to enforce a similar law that is expected to close all but one abortion clinic there. Abortion rights advocates filed an emergency appeal asking the high court to put the Louisiana law on hold.
On Twitter: @DavidGSavage