Divided court weighs health and safety standards for abortion

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WASHINGTON — State legislators seeking to hold abortion providers responsible for the protection of women should soon learn where they stand for the time being with the country’s highest court.

The Supreme Court heard oral arguments Wednesday (March 2) regarding a Texas law that regulates abortion doctors and clinics. The division among the justices seemed clear on the measure’s dual requirements — an abortion doctor must have admitting privileges at a nearby hospital in case a woman needs emergency admission and an abortion clinic must meet the health and safety standards of other walk-in surgical centers.

The typical breach on the high court over abortion is intensified and complicated by the absence of Associate Justice Antonin Scalia, a reliable advocate for state restrictions on the procedure. Scalia’s death in mid-February appears to leave supporters of the Texas law with a 4-4 split as their best hope — an assumption the oral arguments did nothing to undermine.

The high court’s liberal bloc — Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — demonstrated strong skepticism about the law, while other justices appeared much more open to Texas’ action. As is often the case, Associate Justice Anthony Kennedy, typically the court’s swing vote, seems to hold the decisive vote — in this case, just to gain a tie.

Clarke Forsythe, acting president and senior counsel of Americans United for Life, after attending the oral arguments said, “I don’t see either side getting five votes, though it’s possible that Kennedy could vote to send the case back down for more findings.

“I can’t say with confidence whether the court will send the case back down or vote 4-4, but I thought that Justice Kennedy asked questions that suggested that he might vote to affirm the lower court’s decision,” Forsythe said in written comments for BP.

If the court were to divide evenly, it would mean the Fifth Circuit Court of Appeals’ decision upholding the state law would be, in legal terms, “affirmed by an equally divided court.” The ruling would remain in effect in Texas, Louisiana and Mississippi, but it would not establish a precedent and not be controlling in the rest of the states.

A tie or a decision to return the case to a lower court for further findings, something Kennedy suggested during arguments as an option, would “chill” state efforts, Forsythe said.

“If the court just sends back for further findings, it may ‘chill’ what other states can do in 2016-2017,” Forsythe told BP, adding a tie “will ‘chill’ what other states can do, because we’ll be in limbo without a definitive [Supreme Court] ruling.”

The justices could announce a 4-4 tie as early as next week, if that is the outcome in their conference March 4, Forsythe said.

In its past abortion decision-making, the high court has permitted states to regulate aspects of abortion practice to protect the lives and health of women. The standard provided by the justices in determining whether a restriction is constitutional is whether a law is an “undue burden” on a woman seeking an abortion. The justices adopted that test in their 1992 Planned Parenthood v. Casey opinion.

Twenty-two states have enacted laws that require abortion doctors to have admitting privileges and/or transfer agreements with hospitals, according to the National Right to Life Committee (NRLC). The number of states that have requirements for abortion clinics similar to those of ambulatory surgical centers is also 22, the Guttmacher Institute has reported.

Russell Moore, president of the Ethics & Religious Liberty Commission (ERLC), said he is praying the court will rule “in favor of women and families by upholding laws that protect them.”

“The goal of Texas’ common-sense measures is keeping abortion providers accountable,” Moore said in written comments for BP. “That basic health standards would become a politically divisive issue simply demonstrates how politically protected the abortion lobby is.”

After Texas enacted the law, which requires a physician to have admitting privileges at a hospital within 30 miles, the number of abortion clinics in the state dropped from about 40 to about 20. It is expected the number will fall to fewer than 10 if the law is upheld by the high court.

With Scalia’s former chair in the courtroom draped in black, lawyers for the abortion clinics described the Texas law as incompatible with the standard set in Casey, and liberal members of the court seemed to concur. Meanwhile, Chief Justice John Roberts and Associate Justice Samuel Alito questioned what evidence in the record there was the clinic closings were caused by the law.

Stephanie Toti, senior counsel at the Center for Reproductive Rights and lawyer for the challengers, told the court the regulations “undermine the careful balance struck in Casey between states’ legitimate interests in regulating abortion and women’s fundamental liberty to make personal decisions about their pregnancies. They are unnecessary health regulations that create substantial obstacles to abortion access.”

U.S. Solicitor General Donald Verrilli, arguing on behalf of the Obama administration for the abortion clinics, said the measure’s effects “are much more extreme than those of any abortion law that this court has considered since Casey.”

Scott Keller, solicitor general for Texas, told the justices Texas “acted to improve abortion safety…. Abortion is legal and accessible in Texas. All the Texas metropolitan areas that have abortion clinics today will have open clinics if the court affirms, and that includes the six most populous areas of Texas.”

Members of the court’s liberal bloc questioned the need for a law to mandate such health and safety standards.

Keller pointed to Planned Parenthood’s acknowledgment that an average of 210 women a year need hospitalization after an abortion — a number which seemed unconvincing in scope to some justices.

Meanwhile, Alito cited the report in a friend-of-the-court brief submitted to the court that showed Whole Woman’s Health, a business that operates seven abortion clinics in the state, was found with “really appalling violations when they were inspected: Holes in the floor where rats could come in, the lack of any equipment to adequately sterilize instruments.”

James Bopp, NRLC’s general counsel, told BP outside the court after oral arguments, “[T]he problem is that we have back-alley abortion clinics that are operating legally throughout the country, and they’re putting profit ahead of women’s health and lives with terrible practices….

I mean the inspections that have occurred in these clinics have demonstrated horrendous practices, but some people are so fixated and ideologically committed to abortion that they don’t even care if women are also a victim, as well as the unborn child.

“[D]efending these substandard clinics against customary health and safety requirements that any surgical procedure should meet just demonstrates that they are so intent on taking the unborn’s life that they don’t even care how many victims there are that are women.”

A large group of pro-life supporters and an even larger crowd of abortion-rights advocates jammed the sidewalk in front of the Supreme Court building before, during and after the arguments.

The case is Whole Woman’s Health v. Hellerstedt.

— by Tom Strode | BP

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