Diary

Will the Supreme Court Finally Take an Abortion Case?

Let’s go back to Texas in 2013.  In that year, the Texas legislature passed H.B. 2, an omnibus bill to regulate abortion in the state.  This is the very law that led to the infamous filibuster by state senator Wendy Davis- she of pink sneaker fame.  She attempted to parlay that notoriety into a run for Governor, but was humiliated by Gregg Abbott in the general election.  Not only did she fail to win the gubernatorial race, but she also lost the battle over the abortion law after Rick Perry, then the Governor, called the legislature into session to pass the bill which he eventually signed.  The road to passage of the bill was long and tortuous by most accounts and had actually started in 2012.  Regardless, after Perry signed the bill into law, legal challenges began almost immediately.

At the time of passage, there were about 40 abortion clinics operating in Texas.  After several provisions were enacted, that number dropped to about 20.  Currently, the two provisions of interest are requirements that existing facilities be classified as ambulatory surgical centers and that abortion clinic providers have admitting privileges at a hospital within 30 miles of the clinic where the abortion is performed.  Challenges to these provisions met success in the District Court which determined that they had the effect of creating an undue burden on a woman’s access to abortion.  They estimate that as many as 12 of the existing clinics would have to close since converting existing facilities to ambulatory surgical centers would be costly.  Furthermore and for differing reasons, some hospitals are or were denying admitting privileges to abortion doctors.

The state appealed the District Court ruling barring these provisions from going into effect to the Fifth Circuit Court of Appeals in New Orleans.  In October, 2014 the 5th Circuit lifted the restrictions imposed by the District Court and set July 1, 2015 for the day of these provisions to go into effect.  Remember that the law was passed in June 2013 and these clinics had more than a year to comply, but instead legally challenged the provisions in court.  Shortly after that decision by the 5th Circuit, an emergency appeal to the US Supreme Court by pro-choice groups resulted in a stay on the Circuit Court decision and remand for further consideration.  In short, the Supreme Court handed, without comment, the abortion clinics a temporary life line.

Upon remand, the 5th Circuit again reversed the District Court’s decision reasoning that the requirements did not place an undue burden on a woman’s access to abortion- the prevailing legal standard.  That occurred on June 9th of this year (2015) and the provisions were to go into effect on July 1, 2015.  Again facing a deadline, the pro-death lobby appealed to the US Supreme Court.  On June 27th, the last day of the current Supreme Court term, the Court ruled 5-4 to stay the 5th Circuit decision stating that it was likely the Supreme Court would take up the issue in the next term to begin in October 2015.  Additionally, there is a similar case from the 5th Circuit pending before the Court involving a similar provision (the 30-mile radius) in a Mississippi law.  In that case, if the provision were to go into effect, it would close the only remaining abortion clinic in Mississippi.  Because of that and rejecting the arguments of the state that a woman could obtain an abortion in neighboring Tennessee or Louisiana, the 5th Circuit refused to let the Mississippi law go into effect.  That creates the “likelihood” threshold cited by the Court in staying the 5th Circuit decision with respect to Texas.

However, the United States Supreme Court is now in recess until late September when they return to consider petitions that have accumulated over the summer, and ones from the previous term held over.  The Mississippi and Texas appeals meet the latter situation.  Until the Supreme Court acts on these petitions, both stays- the one against Mississippi and the one against Texas- remain in effect.  In the Texas instance, Roberts and the conservative wing were in the minority while Kennedy joined the liberals in granting the stay.

So what happens now?  With respect to the Mississippi case, if they grant review the stay remains in effect until a ruling is reached.  If they rule in favor of Mississippi, then the stay is lifted and Mississippi can then enforce their law and the only remaining clinic in Mississippi likely closes.  If they rule in favor of the clinic, then they stay open and the law is nullified.  It is quite possible that the two clinics that closed in Mississippi can then re-open their doors.  With Texas, if they accept the appeal, the stay against enforcement also remains in effect until a decision is reached.  A ruling in favor of Texas would lift the Supreme Court ordered stay and they could enforce the law.  A ruling against Texas would keep the stay in effect and the provisions would be nullified and the 20 or so clinics would remain open.

The Roberts Court has been very reluctant in granting abortion cases.  Their last ruling in this area happened in 2007 when they upheld a ban on a rare abortion procedure- partial birth abortions.  In a 5-4 ruling, Kennedy was the deciding vote and he wrote the opinion.  Moving forward, Kennedy is the key vote.  It should be noted that Kennedy has only once voted to strike down any abortion restriction- that of spousal notification in a Pennsylvania law in the famous Planned Parenthood vs. Casey case which established the undue burden standard in analyzing abortion laws.  It should also be noted that that decision essentially reaffirmed Roe vs. Wade even though the opportunity existed to overturn that ruling.

This past term, the Court refused to hear an appeal from North Carolina involving a law that required abortion providers to inform a patient of ultrasound results and to show a picture to the patient, upon request, of the fetus.  The result was that this provision of North Carolina’s law was struck down by the Fourth Circuit Court of Appeals on First Amendment grounds.  The refusal to take the case illustrates the Roberts Court’s reluctance to take abortion cases of late.

There are other aspects of the Texas law that have the pro-death lobby upset.  Provisions to shore up loopholes in parental notification with abortion on minors is one area.  The Court has previously ruled that they are permissible provided there is a judicial bypass procedure.  Texas requires that the minor provide definite proof there is the serious risk of physical, emotional, or sexual abuse if a parent’s approval is needed.  Also, the judicial bypass must be confidential and expeditious.  Currently, if a court does not make a determination within 2-5 days, the bypass goes into effect and the minor gets court approval for the abortion without parental notification.  Under the Texas law, the equation shifts; if no decision within 2-5 days, the request is assumed to be denied.  These are not issues in the pending cases before the Court, but could very well be in the future.

What are the chances of the Supreme Court taking these cases?  With Mississippi, the Court may consider the fact that the law has the effect of closing the only abortion clinic remaining in the state and that would place an undue burden on the woman and they may just deny the appeal leaving the lower court opinion in effect and keeping that clinic open.  The dynamics with the Texas case is different in that it is estimated that eight clinics would remain open although they would be concentrated in 4 metropolitan areas.  None would be open south of San Antonio.  This writer believes the Court needs to take up this issue.

Currently, the parameters of what constitutes an undue burden is a hodgepodge of differing rulings from various lower courts.  One of the worst things they can do is to break out the ruler and decide that, in the case of hospital admission privileges, a 100 mile radius is acceptable, but 30 miles an undue burden.

With the ambulatory surgical requirements, the case is more difficult.  Most abortions performed today are not of the surgical kind, but are medically induced by drugs.  The Texas law makes no distinctions.  Planned Parenthood in Texas makes this very argument.  The Supreme Court may just have to work their way around this argument in formulating a decision.  Could or should the state exempt abortion clinics from these requirements if the bulk of their activity is medically-induced abortions?  What constitutes “a bulk?”

The state’s reason for these regulations is to ensure that abortions are performed under the safest conditions possible and that if something goes wrong, the patient receives adequate emergency care at a hospital.  The pro-choice people argue that abortion should be legal to avoid the days of back alley, dangerous and unsanitary abortions.  Yet when the state establishes regulations towards these very ends, the pro-death crowd protests.  Statistics indicate that 2% of abortions result in serious complications requiring hospitalization.  Annually, this translates into about 200,000 women nationally.  Is that enough to justify the Texas regulations?

All these questions and considerations will be before the Court either in the briefs or in the amicus (friend of the Court) briefs.  Obviously, this will likely come down to a 5-4 decision with Kennedy being the swing vote.  Given his gradual swing to the Left on many social issues, my guess is that if they take the case, he will read the Texas law as a whole as intending to place obstacles in the way of women seeking an abortion and siding with the liberal wing and strike down these regulations with the obligatory Kennedy caveats and reassurances that states are free to enact regulations that are not so onerous as to have the effect of literally shuttering abortion clinics within their boundaries.