High Stakes for Supreme Court Arguments on Abortion Case

Three years ago, Wendy Davis gained national attention during an 11-hour filibuster of one of the toughest abortion bills to come to the Senate floor: it would ban abortions after 20 weeks, make doctors who perform abortions get admitting privileges at local hospitals, and require clinics to build costly surgical centers in order to stay open.

Davis’ tactic derailed that bill, but a similar one called HB2 passed a few days later. If it’s allowed to go into effect, HB2 will shutter about three-quarters of the abortion clinics in Texas, leaving only nine or ten clinics to serve more than 5 million women of reproductive age in the nation’s second-largest state.

This week represents the last chapter of the fight to keep those clinics open. On Wednesday, the Supreme Court will hear oral arguments in Whole Women’s Health v. Hellerstedt on whether the Texas restrictions amount to an “undue burden” on the constitutional right to an abortion established in Roe v. Wade.

Abortion rights supporters hope Justice Anthony Kennedy will join the four liberal justices for a 5-3 ruling striking down the law, a decision which would reverberate across the 24 states that have passed similar restrictions.

If Kennedy sides with the conservative justices and the court is split 4-4, then the Fifth Circuit’s ruling would stand, allowing the Texas law to go into effect without setting any national precedent. In that scenario, more conservative states would be free to pass and enforce similar laws.

Many states would do just that. Since 2011, more than 288 abortion restrictions have been passed on the state level, which means that more than a quarter of all abortion restrictions passed in the 43 years since since Roe v Wade have been enacted in the last five years. Those restrictions are part of a successful strategy by anti-abortion lawmakers: instead of focusing on thorny questions about when life begins, they focus on concerns about women’s health to put restrictions on abortion clinics, such as requiring them to have doctors with admitting privileges at nearby hospitals.

Both the American Medical Association and the American College of Obstetricians and Gynecologists have said the laws are not necessary. The two major medical groups filed a joint amicus brief to the Supreme Court arguing that abortion is one of the safest medical procedures around (with a mortality rate of 0.0005%) and called the restrictions “devoid of any medical or scientific purpose.” By contrast, colonoscopies have a 0.03-07% mortality rate, but don’t face similar regulations.

Similar laws have been passed in 24 other states, including Mississippi, Alabama, and Indiana, and several of those laws are on hold until the Supreme Court decides whether to uphold Texas’s restrictions.

Kennedy has been ambivalent on abortion in the past. In 1992, he sided with the plurality opinion in Planned Parenthood v. Casey to reaffirm Roe v. Wade, but in a 2007 case on late-term abortion he expressed concerns that some patients might come to regret their abortions.

Hundreds of prominent women, including Davis, actress Amy Brenneman and former Nevada state lawmaker Lucy Flores filed several amicus briefs to the court stating that they did not regret their abortions– on the contrary, their abortions allowed them to go on to live full and happy lives. The briefs seem to be targeting Kennedy in an effort to convince him that abortion does not always lead to regret. Meantime, opponents filed a brief on behalf of more than 3,000 unnamed women who say they have been “injured” by abortion.

But experts on Kennedy say his concerns were more about late-term abortions.

“I think Kennedy had a clearly had a hostile view of partial birth abortion, and I think that’s what generated a lot of the anti-abortion rhetoric in that case,” says Helen J. Knowles, author of The Tie Goes to Freedom, about Kennedy. “It would be a total shock to me to see him want to undermine Roe v. Wade.”

Abortion-rights supporters say that even if the court is split, another case may head to the Court after former Justice Antonin Scalia’s seat is filled.

“It’s just a question of biding their time,” says Nancy Northup, president and CEO of the Center for Reproductive Rights. “There will be another justice on the Supreme Court, so we will be looking for another shot,” she says, noting that with all the abortion restrictions enacted in different states, there is a “pipeline” of cases that could go to the Supreme Court.