The Supreme Court faces a decision soon on whether to dive back into the contentious issue of abortion and consider allowing states to enforce new, stricter laws, including one from Mississippi that would close that state’s only licensed abortion clinic.
Since 2010, Republican-led states have passed an array of abortion-related laws. Some limit the time period during which women may obtain an abortion. Others set new restrictions for clinics, doctors or the drugs that induce early abortions.
Most of the new laws have been blocked or struck down by federal judges. And until now, the high court has refused to hear states' appeals.
For years, the justices have steered clear of most abortion cases. A decision to turn down the latest appeals, from Mississippi and North Carolina, would be a victory for abortion rights advocates. Abortion rights groups have argued that strict regulations imposed by conservative states were designed, not to improve healthcare, but to deter and prevent pregnant women from choosing a legal abortion.
But attorneys for Mississippi and North Carolina have asked the justices to consider reviving their laws.
“It is high time for this court to revisit the issue” of abortion, Mississippi Atty. Gen. Jim Hood told the justices in a brief filed in early May.
Hood is defending a 2012 law that requires all physicians at an abortion clinic to have admitting privileges at a nearby hospital, even if none of those hospitals will extend privileges to doctors who perform abortions.
The Jackson's Women's Health Organization, the only abortion provider in the state, had three doctors, only one of whom had the required admitting privileges.
A federal judge blocked the law from taking effect, and last year, the 5th Circuit Court of Appeals in New Orleans agreed.
The state said its abortion restrictions did not put an “undue burden” on women from Mississippi because they could cross state lines and obtain an abortion in Memphis, Tenn., or Baton Rouge and New Orleans in Louisiana. But the appeals court judges rejected that argument.
“Mississippi may not shift its obligations to respect the established constitutional rights of its citizens to another state,” Judge E. Grady Jolly wrote in a 2-1 ruling.
North Carolina Atty. Gen. Roy Cooper is asking the high court to revive his state's law that would require doctors, before performing an abortion, to display and describe an ultrasound image of the developing fetus, even if the pregnant woman “averts her eyes” and tries to cover her ears.
Lawyers for the Center for Reproductive Rights, who sued on behalf of several North Carolina doctors, called the law the “most extreme” of several so-called “informed consent” statutes passed in recent years.
In December, the 4th Circuit Court in Richmond, in a 3-0 decision, upheld a judge's order blocking enforcement on 1st Amendment grounds.
The government may not force a doctor to serve as “the mouthpiece for the state's message,” the judges wrote. The law “compelled speech” by doctors that is “ideological in intent and in kind. ... The clear and conceded purpose of the requirement is to support the state's pro-life position,” Judge J. Harvie Wilkinson, a leading conservative jurist, wrote in his opinion blocking the state from enforcing the law.
At the Supreme Court, justices could announce as soon as Monday whether they will hear the Mississippi case. A decision on whether to hear North Carolina's appeal should come by mid-June.
Attorneys for the states that have passed new restrictions say the court should clarify the law governing abortions. In 1992, in its last sweeping abortion ruling, the high court said states may regulate the procedures so long as their rules do not put an “undue burden” on women seeking to end a pregnancy.
Lawyers for Mississippi called that a “vague and amorphous standard” which has not provided “meaningful guidance” to lawmakers or judges.
The North Carolina case raises the recurring issue of how far states can go to regulate the practice of medicine by restricting what doctors say or do.
In his appeal, Cooper said North Carolina’s Woman's Right to Know Act of 2011 requires doctors to provide “truthful information to women who will soon be undergoing abortions.”
He also pointed to a ruling last year from the 9th Circuit Court in San Francisco which approved a California law on a different medical topic -- sexual orientation. The appeals court in that case upheld a law that forbids licensed mental health providers from offering “sexual orientation change efforts” to patients under age 18. That ruling, the North Carolina lawyer said, confirms the state's broad power to regulate what doctors say.
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