Supreme Court to hear arguments on Texas abortion-clinics case – Washington Post

The Supreme Court will hear arguments Wednesday in its most important abortion case in a generation, considering how far states may go in regulating the practice before violating a woman’s constitutional rights.

The review of a Texas law with regulations similar to those in other states thrusts the court into one of the country’s most divisive moral and political controversies. The divide over protecting the unborn and safeguarding the right of a woman to choose is among the starkest differences between Republican and Democratic candidates.

Numerous states have enacted restrictions that lawmakers say protect a woman’s health but that abortion providers contend are merely a pretext for making it more difficult to obtain an abortion — or even making the procedure unavailable within a state’s borders.

The challenged provisions of the Texas law require that abortion facilities meet the standards required of surgical centers and say doctors who perform abortions at clinics have admitting privileges at a nearby hospital.

The justices are applying a test the court formulated nearly 25 years ago in Planned Parenthood v. Casey . It said states had a legitimate interest in regulating abortion procedures but could not make them so onerous as to impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.

Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Both sides are convinced that one justice is pivotal to the outcome: Anthony M. Kennedy. He, along with retired Justices Sandra Day O’Connor and David H. Souter, wrote what became the controlling opinion in Casey.

The case is being heard by an eight-justice court because of the unexpected death of Justice Antonin Scalia, who was one of the court’s most outspoken opponents of the idea that the Constitution protects a right to abortion.

It will be hard for abortion opponents to win a precedent-setting victory without Scalia, should the court’s four liberals vote against the law. A 4-to-4 tie would uphold a decision of the U.S. Court of Appeals for the 5th Circuit that said the Texas law was constitutional and mean profound change in the nation’s second-largest state.

But a tie vote would not set a precedent. On the other hand, if Kennedy voted with the liberals that the Texas restrictions went too far, it could have national implications. Abortion supporters say more than 200 restrictions have been passed by states in the past five years.

Kennedy, 79, is hardly the rescuer that abortion rights supporters would wish for. In his nearly three decades on the court, he has upheld every abortion restriction he has ever considered save one. The exception was a Pennsylvania law that required pregnant women to notify their husbands before seeking an abortion.

Texas argues that its 2013 law was a logical response to the shocking indictment of Philadelphia abortion provider Kermit Gosnell, who was convicted that year of first-degree murder in the deaths of three infants born alive and involuntary manslaughter in the death of a woman undergoing the procedure in his under-regulated clinic.

The state’s restrictions were meant to ensure the safety of women undergoing the procedure, Texas told the Supreme Court, and fit within Kennedy’s opinion in Casey that “states may regulate abortion, so long as the regulations have a rational basis and do not have the purpose or effect of creating a substantial obstacle to abortion access.”

The number of clinics in Texas has dropped from about 40 to 19 since portions of the law went into effect. If the providers lose at the Supreme Court, they say the number will drop to 10 for a population of 5.4 million women of reproductive age.

Abortion providers say requiring doctors to have admitting privileges at a nearby hospital are unnecessary. A hospital would accept any woman with a problem. Moreover, some hospitals allow admitting privileges only to doctors who refer a certain number of patients to the facility. But abortion patients rarely require hospitalization.

They say there is no reason for first-trimester abortions to be performed in surgical centers that are designed for more invasive medical procedures.

The American Medical Association agrees with the abortion providers.

“Laws that regulate abortion should be evidence-based and designed to improve women’s health,” said the AMA brief. “The challenged provisions of H.B. 2 are neither.”

Texas presented medical officials who said the requirements would benefit women. A trial judge found the arguments unconvincing and struck down those provisions of the law. But a panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans reversed that decision and said courts do not have to scrutinize the rationale provided by a legislature for abortion laws as long as that rationale has a reasonable basis.

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