Mark Sherman ?and Kim Chandler
WASHINGTON: The Supreme Court challenge to a Texas law that has dramatically reduced the number of abortion clinics in the state is the justices’ most significant case on the hot-button issue in nearly a quarter-century.
One of this election-year term’s biggest cases is being argued Wednesday before a court altered by the death of Justice Antonin Scalia. He was perhaps the most vociferous abortion opponent among the nine justices.
The Texas law has been replicated across the South and elsewhere, part of a wave of state abortion restrictions in the past five years. The court’s decision could affect laws in Ohio and other states that restrict abortion clinics.
States mainly led by Republicans have tried to limit when in a pregnancy abortions may be performed, restricted abortion-inducing drugs that take the place of surgery and increased standards for clinics and the doctors who work in them.
The Supreme Court case involves that last category. A Texas law enacted in 2013 requires doctors who perform abortions to have admitting privileges at nearby hospitals. It also prohibits clinics from providing abortions unless they meet the standards of outpatient or ambulatory surgical centers.
The high court has partially blocked those measures. If allowed to take full effect, all but 10 clinics in Texas would have to close. There would be no abortion providers in the state’s rural areas or west of San Antonio. Before the law was passed, there were roughly 40 clinics in the state. About half have closed.
The case offers competing views of how to protect women’s health. The clinics contend abortions are safer than many other medical procedures that are less stringently regulated and that the clinic regulations have only one purpose: to reduce the availability of abortions.
“These laws are tantamount to an outright ban for too many,” said Amy Hagstrom Miller, chief executive of Whole Woman’s Health, which operates clinics in Texas and other states.
Defenders of the laws in Texas, Ohio and elsewhere argue that states have discretion to take steps to make abortions safer. Alabama and other states backing Texas told the Supreme Court that states were within their rights to apply health regulations to clinics for the sake of patients.
“Obviously I’m pro-life and I would like to limit the number of abortions, but here we were looking at women’s health and safety,” said Republican Gov. Robert Bentley of Alabama, a doctor who signed his state’s admitting privileges law.
A federal judge in Texas struck down parts of the law as not intended to promote women’s health and clearly aimed at reducing access to abortion. But the 5th U.S. Circuit Court of Appeals in New Orleans largely accepted the state’s argument.
The justices’ June 2015 order putting the appellate ruling on hold at least suggests that there is a majority to cut back on the regulations.
For clinics and abortion-rights groups to prevail, they still need Justice Anthony Kennedy’s vote, along with the reasonably certain votes of four more liberal justices, just as they did before Scalia’s death. Kennedy was part of the 5-4 majority to reaffirm abortion rights in 1992.
A broad high court ruling striking down the Texas provisions would show that the court’s 1992 decision still “has some teeth in it,” said Stephanie Toti, the lawyer who will argue the clinics’ case.
Without Scalia, the best that supporters of these laws can hope for is a 4-4 tie, which would uphold the appeals court’s endorsement of the Texas law.