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Why the pending abortion case in Texas matters for the entire country

A medical operating room is seen through a door window during a tour at Whole Woman’s Health of San Antonio, Tuesday, Feb. 9, 2016, in San Antonio.  The Supreme Court will soon hear Whole Woman's Health’s challenge to HB2, Texas legislation that requires
A medical operating room is seen through a door window during a tour at Whole Woman’s Health of San Antonio, Tuesday, Feb. 9, 2016, in San Antonio. The Supreme Court will soon hear Whole Woman's Health’s challenge to HB2, Texas legislation that requires all abortion facilities to meet heightened requirements by becoming ambulatory service centers. (AP Photo/Eric Gay)
Eric Gay, AP

One week before the Supreme Court was slated to hear arguments on the biggest abortion case in decades, two of the four remaining abortion clinics in Louisiana were forced to close, with a possible third closure soon.

The shutdowns resulted from a ruling by the 5th U.S. Circuit Court of Appeals, which overruled a lower court and gave Louisiana the right to require that abortion providers have local hospital admitting privileges.

The ruling intensified the urgency felt by both sides of the debate to get the nation's highest court to either approve or abolish the flood of anti-abortion regulations coming out of state legislatures.

Since 2011, the number of anti-abortion laws has spiked — 288 restrictions passed in the last five years, compared to 292 regulations passed in the previous 15.

The anti-abortion movement's incremental strategy of imposing restrictions at the state level has been a slow but steady march toward the ultimate goal of overturning the 1973 Supreme Court ruling that legalized abortion, says Joshua Wilson, an assistant professor of political science at the University of Denver.

And when the court convenes Wednesday to hear a Texas case, Whole Women’s Health v. Hellerstedt (formerly Cole) — referred to as one of most important abortion cases since Roe v. Wade more than 40 years ago — the anti-abortion movement can still use any outcome for momentum, insulated from major setbacks by its small-steps approach, Wilson said.

“Even if the Texas laws are struck down, or some portions are struck down, I don’t think it derails the (anti-abortion) strategy,” he says. “They will still keep looking for ways of limiting, constraining and chipping away at abortion access. Their essential strategy remains — you don’t go with a frontal assault on Roe, but you keep chipping away at the sides."

The Texas case

Before 2014, there were more than 40 facilities that provided abortions in Texas. But after Gov. Rick Perry signed HB2 — a law requiring that abortion clinics adhere to the same standards as ambulatory surgical centers and that abortion doctors have admitting privileges at nearby hospitals — the number dropped immediately. Today, there are 19 clinics operating, with the potential for more closures should the law be upheld.

Whole Women’s Health sued the state, challenging the constitutionality of the law and the case bounced between district and appellate courts, with the Supreme Court even weighing in on certain aspects of the case, before it finally agreed to hear it.

To understand why this case could be so influential, scholars point to the two landmark decisions that precede it — Roe v. Wade, which gave women the right to seek an abortion before fetal viability, and Planned Parenthood v. Casey (1992), which upheld Roe v. Wade but adjusted the viability standard and created the “undue burden test.”

In Casey, the Supreme Court ruled that abortion restrictions were unconstitutional if they placed an "undue burden" on women seeking abortions. Yet, there was some ambiguity in that ruling, which has been argued about ever since, said John A. Robertson, professor of law and bioethics at the University of Texas at Austin law school.

Some courts have ruled that if the state’s rationale for a regulation is health based, that’s good enough to justify the regulation, Robertson said. However, other courts rule that many of the regulations are not truly health focused and merely attempts to curb abortion access.

The main issue in the Texas case is whether the courts can apply a "balancing test" or whether they just have to take the state's word for it, Robertson said.

“Unless the courts are entitled to look and see if the health claim is really there, is really justified, it will allow states to restrict abortion on pretexts of protecting health," he said, "when in fact no real advancement to health (exists.)”

The health argument

The way advocates on both sides of the Texas law talk shows how tactics have changed since the days of shouting matches in front of abortion clinics. Those opposed to the restrictions refer to them as TRAP laws — Targeted Regulation of Abortion Providers — while those pushing for the changes talk about safety for women and increasing protections from unscrupulous providers, citing the gruesome Kermit Gosnell case.

“This is a really interesting evolution in the anti-abortion movement,” said Carole Joffe, a professor at the University of California, San Francisco's Bixby Center for Global Reproductive Health and a professor emerita of sociology at UC Davis. “Demonizing abortion and violence against providers, in some ways, has been effective, but they haven’t won the hearts and minds of the American people. Coming up with innocuous sounding regulations made in the name of women’s safety sounds fine — at least it doesn’t sound objectionable — but it is enormously consequential.”

For example, the admitting privileges’ rule seems reasonable, Joffe says, until someone considers that this isn’t the way emergency care works in the United States.

With any outpatient procedure — mammogram, colonoscopy, abortion — if something were to happen, the person would just go to the ER and be treated by doctors there — not accompanied by the doctor who did the mammogram or colonoscopy, she said.

Joffe also points out that many hospitals only give admitting privileges to providers who have at least 10 admissions a year. But because abortions are typically without complications, most providers don’t have anywhere near that number of admissions, and thus can't get those privileges.

In regard to ambulatory surgical centers, the Texas code that details the requirements is lengthy — 117 pages — and lists things like hallway width, ceiling height and even types of acceptable floorings — most of which have no bearing on the safety of an abortion procedure, argues Joffe, but have forced many clinics to close because they can't afford to come up to code.

“My best-case scenario is that the court will see this case for what it is, false claims that these measures are necessary for women’s safety, and strike them down,” she said.

Yet anti-abortion proponents say that there’s no reason abortion facilities should be held to a different standard than any other outpatient surgical center. And they are making that case in other states.

A bill before Minnesota lawmakers would allow the state to license and inspect abortion facilities, and bring them up to the same standards as any other outpatient surgical facility in the state.

“It’s not a matter of singling (abortion providers) out for special regulation," said Bill Poehler, communications director for Minnesota Citizens Concerned for Life. "It’s a matter of closing a loophole that has permitted the abortion facilities to remain unlicensed in Minnesota. We don’t believe that is a safe situation for women."

The Minnesota Legislature actually approved such a law in 2012 but it was vetoed by the governor. They’ve been working ever since to bring it back, and remind citizens that these facilities are completely outside government purview and possibly unsafe for women.

“I think it has the potential to be a very significant ruling,” Poehler said of the Texas case. “If it is upheld by the court, it will just be an encouragement to other states to look at the issue of the safety of abortion facilities. Hopefully the court will see it as a matter of women’s health and safety, and not just see it politically.”

Nationwide impact

Minnesota is among a group of states, like Texas, trying to "push the boundaries as much as possible and … essentially regulate abortion out of existence," says Wilson.

Regarding admitting privileges, Mississippi passed a law similar to Texas' that would have shut down the state's only abortion clinic, but the law was struck down in July 2014 by the 5th U.S. Circuit Court of Appeals, which ruled it was an undue burden to make women cross state lines to get an abortion.

Federal judges also struck down admitting privilege laws in Alabama in August 2014 and Wisconsin in March 2015. And last Wednesday's decision by the 5th Circuit Court with regards to Louisiana makes the question even more pressing.

The Supreme Court's opinion in the Texas case could have a direct impact on these states' laws, though it's also possible that the opinion could be worded so narrowly that it applies only to Texas, says Teresa Stanton Collett, a law professor at the University of St. Thomas School of Law in Minneapolis.

In one sense, Texas' case was an unusual one for the high court to agree to hear, amid other potential abortion-challenging cases, Collett says. In a discussion on the SCOTUSblog.com, she wrote in support of the Texas law, arguing that Texas' unique geographic factors, such as size and space between cities, make it an odd case to hold up as a national standard.

“You have these wide-open expanses, and forget there’s no abortion clinics, there’s no provider (of anything), no hospital, no gynecologist," she said in an interview.

Allowing abortion clinics to remain unregulated or under-equipped and doctors to remain unconnected with nearby hospitals will put women at risk, she explained, especially in areas where hospitals are already far away.

And arguing that it's a huge burden for women not to have an abortion clinic for hundreds of miles doesn't make sense when there's nothing else there either.

"If they strike down the Texas statute, the least damaging opinion to those of us who believe that abortion clinics need to be regulated … is very fact laden, very specific," she said, "(and it would leave) similar laws in other states that don’t have the same broad geographic range … at least open to being upheld."

Scalia's absence

While nothing is ever fully predictable on the Supreme Court, political scientists and legal experts rely on patterns within the court and each justice's voting behavior to get a sense of how certain issues might play out.

When a nine-member court hears cases on divisive social issue cases like abortion or same-sex marriage, the fifth vote or "median justice" is key in determining whether the opinion falls more to the liberal left or the conservative right.

And for years, the court’s median justice has been Justice Anthony Kennedy, who has been the deciding vote in many cases.

However, with the death of Antonin Scalia, there’s no longer an obvious middle, or median justice, explains Lee Epstein, law professor and co-director of The Center for Empirical Research in the Law at Washington University in St. Louis.

Thus any future Supreme Court appointment has the potential to be “very meaningful,” she said. “It could really shift the center of the court from a moderate conservative (Kennedy) to Breyer, a moderate Democrat. And that’s a big shift.”

This ideological shift is incredibly important in light of the cases before the court and how many of them could hinge on one key vote — like Whole Women’s Health v. Hellerstedt.

In this case, if Kennedy sides with the more liberal bloc and strikes down the Texas restrictions 5-3 it would set a constitutional precedent on abortion law and send a ripple effect through legislatures throughout the country. However, if Kennedy stays conservative, the court would remain deadlocked 4-4 and the lower court's ruling would remain in effect, allowing Texas to impose the restrictions without setting a national precedent — a situation the Supreme Court doesn't particularly like, because it means different areas of the country are operating under different circuit court rules, Wilson says.

However, the court could also decide to hear arguments, then ask for re-arguments when a ninth justice is appointed. Or, it could push the case off entirely until a full court is empaneled.

If the court waits, its decisions could change dramatically depending on who President Obama, or his successor, appoints.

“The new member of the court has the potential to change the court quite a bit, from a fairly solid five-member conservative (majority) to a five-member solid liberal majority,” said Kevin Quinn, a law professor at the UC Berkeley School of Law and co-creator of the Martin-Quinn scores, which measure the location of the justices on an ideological spectrum. “Because of the size of the (ideological) gap between Breyer and Kennedy, there’s a huge potential to change the location of the median justice. That’s a very consequential thing for people to be aware of.”

But no matter what the court does or how the justices shift, the work on both sides of the abortion debate will continue.

“We always watch to see what the court does,” says Brock Schmeling, executive director of North Dakota Right to Life. “It’s hard to predict how their decision will affect (things) because they can decide anything. We’re not going to change how we operate because a case is pending at the Supreme Court. Once they make a decision, we’ll move from there. If we changed our strategy just because a case is pending at the Supreme Court or district court, we’d never be able to work toward our goal of protecting all innocent human life.”

sisraelsen@deseretnews.com