The U.S. Supreme Court is once again entering the debate over abortion. The court said Friday that it will hear arguments later this term testing the constitutionality of a sweeping Texas abortion law that, if upheld, would allow the kind of major abortion restrictions not permitted in more than 40 years.
Texas set the gold standard for tough abortion statutes two years ago. In June, the 5th Circuit Court of Appeals, based in New Orleans, upheld the law. The Supreme Court, by a 5-4 vote, temporarily blocked the ruling from going into effect. If the Supreme Court agrees with the 5th Circuit decision and upholds the Texas law, the number of clinics in the state would drop from the 40 that existed when the law was passed to nine or 10.
That would leave some 900,000 women of childbearing age to drive more than 300 miles round-trip to get an abortion. Nationally, it would give the go-ahead to dozens of similar provisions that, until now, have been blocked by the lower courts.
The Texas law has two key provisions. First, it requires that all doctors who perform abortions have admitting privileges at a hospital within 30 miles of where the abortion takes place. But because the complication rate from abortions is so minuscule, most abortion providers cannot meet the minimum number of admittances that hospitals require before granting privileges.
Second, the law requires that abortion clinics be retrofitted to meet elaborate statutory hospital-grade standards, including wide corridors, large rooms and other expensive construction and equipment standards that do not apply to all other outpatient facilities where other surgical procedures like liposuction and colonoscopies take place.
The provisions also apply to doctors who prescribe medication-induced abortions; such procedures involve giving the patient two pills and sending her home.
The state of Texas defends the statute, contending it was enacted to protect women’s health and safety.
That is disputed by the American Medical Association, which does not usually take a position in abortion cases, and the American Association of Obstetricians and Gynecologists, as well as other major medical groups. In a brief filed in the case, they contend that the law not only fails to enhance safety but impedes it.
The Texas case represents the most comprehensive challenge to the court’s rulings on abortion since 1993, when the justices cut back on their 1973 decision in Roe v. Wade and allowed states greater leeway in regulating abortion. In that 1993 case, Planned Parenthood v. Casey, the court set a new standard for what limits a state may place on access to abortion.
Back then the court said states could try to persuade women not to have an abortion by requiring a 24-hour waiting period and counseling before an abortion. But at the end of the day, the court said states could not place “an undue burden” on a woman’s right to terminate a pregnancy.
On the subject of health care regulations specifically, the court said that “unnecessary” regulations that present a “substantial obstacle” to a woman exercising her abortion right amount to an undue burden.
The 5th Circuit, in upholding the Texas law, said that it did not consider a 300-mile round trip for nearly 1 million women of reproductive age to be a substantial burden because that number was “nowhere near” a large fraction of the state’s 5.4 million women of childbearing age.
The circuit court also said that under the Supreme Court’s prior decisions, it was required to defer to the state’s asserted “rational” justification for the law — protecting women’s health — even though that assertion is not supported by empirical evidence.
Should the Supreme Court uphold that reasoning, it would mean that just about any law offering a rational justification, no matter how speculative, could be upheld. And that, in turn, would allow states to make abortions extremely difficult to obtain.