WASHINGTON — The fate of multiple abortion clinics awaits the consideration of the U.S. Supreme Court.
The high court will have the opportunity to decide this term, which opened Oct. 5, whether state governments may enact rules that result in shutting down most abortion clinics or even the only one remaining in the state. In addition to abortion, the justices also will consider such issues as the death penalty and affirmative action in their term, which will conclude early next summer.
The Supreme Court has yet to decide whether it will review rulings by the Fifth Circuit Court of Appeals in New Orleans on abortion regulations enacted by Mississippi and Texas, but the uncertainty is expected to end soon. The high court is likely to make a decision about whether to accept appeals of the lower-court decisions during its conference Nov. 6, according to the Alliance Defending Freedom (ADF).
Russell Moore, president of the Ethics & Religious Liberty Commission (ERLC), said that he is praying the justices will accept the cases and issue “a judgment consistent with life and human dignity.”
“The Supreme Court has an opportunity to defend the rights of millions of women and children against the predatory practices of the robber barons of the abortion industry,” Moore said in written comments. “These cases go beyond typical left vs. right boundaries and speak to the need to protect our neighbors from greed and exploitation.”
Steven Aden, ADF senior counsel, is “more hopeful that the Supreme Court will take these abortion cases, or at least one of them, than I have been in a while,” he said in a phone interview. The justices’ interest has been signaled by the fact they have scheduled the Mississippi case for conference seven times beginning in the spring, Aden said. He also states that it’s time for another ruling on abortion.
The high court has not issued an opinion on abortion since 2007, when it upheld the federal ban on partial-birth abortion. “[T]hat’s the longest dry spell I’m aware of for the Supreme Court not to have taken an abortion case,” said Aden, director of ADF’s Center for Life Alliances. “So it’s way overdue.”
The Mississippi law requires abortion doctors to have admitting privileges at a nearby hospital in case a woman needs emergency hospitalization. That rule would result in the state’s only remaining abortion facility, which is in Jackson, going out of business.
The Texas law has the same type of requirement for abortion doctors but also mandates abortion clinics must meet the health and safety standards of other walk-in surgical centers. That law would reduce the number of abortion facilities in the state from what had been about 40 to fewer than 10.
The Fifth Circuit Court agreed with a federal judge who ruled Mississippi’s law constituted an “undue burden” on a woman’s access to abortion because the last clinic in the state would have to close. The appeals court, however, upheld the Texas law. The Supreme Court blocked implementation of the Texas law while the appeal process continues.
The high court established the “undue burden” standard on abortion in its 1992 Planned Parenthood v. Casey opinion, which permitted state regulations if they did not encumber women excessively. That ruling also reaffirmed the 1973 Roe v. Wade decision, which legalized abortion nationwide.
The questions, Aden said, in the Mississippi case include: “Is it an automatic undue burden in violation of Casey for a state to apply health and safety regulations that leave no clinic standing? Or can Mississippi rely on the availability of nearby abortion facilities across state lines, like in Memphis; Tuscaloosa, Ala.; New Orleans; and say that women can access it there?”
Another question, he said, “is whether Roe v. Wade and Planned Parenthood v. Casey should be revisited by the Supreme Court.”
The delay on the Mississippi case appears to indicate justices are determined to consider it with the Texas one, Aden said, leading some observers to think it is possible “one or more members of the court would like to have an opportunity to go after the whole enchilada, if you will — whether Roe and Casey are still viable or whether they should be overturned or revisited.”
A majority of the Supreme Court, Aden said, appears “open to reasonable and rational health and safety measures that protect women, because I think they recognize that a so-called right to access abortion has to be taken with or couched in the understanding that states have the responsibility and the constitutional authority to protect women citizens from unscrupulous medical providers.”
“I don’t think you’re going to see a case in which the Supreme Court elevates availability of abortion over state regulation for health and safety, because then that would be tantamount to the Supreme Court constitutionalizing back-alley abortion,” Aden said.
These “reasonable, common-sense measures” in Mississippi and Texas “apply to all other forms of outpatient surgery,” Aden said. “I think for that reason the Supreme Court will approve [the laws].”
The Weekly, the ERLC’s regular news summary and commentary, reported in its Oct. 9 edition the Supreme Court will rule on other social issues this term:
- Capital punishment could be a topic in cases from Kansas involving sentencing requirements and jury instructions in a ruling by the state’s high court to rescind some death sentences. In the last term, two Supreme Court justices wrote it is time to reconsider the constitutionality of the death penalty. The high court heard oral arguments in the cases Oct. 7.
- Affirmative action in college admissions will be considered when the justices hear oral arguments Dec. 9. The court will decide whether the University of Texas’ race-sensitive policy for applicants is constitutional.
— by Tom Strode | BP