The Texas case was seen as the most high-profile abortion rights case to reach the court in more than 20 years, but Scalia’s death in February changed the dynamics of the case significantly.
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The justices are scheduled to meet Friday when they will take a preliminary vote on the Texas abortion case.
As an impetus for the law, proponents have cited the case of Kermit Gosnell, a Philadelphia doctor who was convicted of murder in 2013 for conducting late-term abortions at a filthy clinic.
The women on the Supreme Court seemed especially skeptical of Texas abortion restrictions in oral arguments in Whole Women’s Health vs. Hellerstedt on Wednesday, repeatedly asking why abortion was being singled out for extra constraints when more unsafe outpatient medical procedures are not. Since 2010, Republican-led states have adopted increasingly stringent abortion regulations. If Kennedy, a conservative, sides with the court’s four liberals, the court could either send the case back to the lower court or strike it down. “It’s like you put the law into effect, 12 clinics closed”. He raised the possibility of sending the case back to a lower court for more fact-finding as to whether the clinics that remain in Texas can meet the demand for abortion. “How many women are located over 100 miles from the nearest clinic?”
Caroline Goldfarb, 19, a student at Harvard, said people don’t understand that abortion is “one of the safest medical procedures”. It’s unclear how often women have issues later, even when they return home, such as developing an infection.
The three women on the bench, joined by Justice Stephen Breyer, hammered the state’s lawyer about whether the law is medically necessary and places an undue burden on women. In 2007, Missouri redefined the definition of “ambulatory surgical centers” to include any establishment that performs second- or third-trimester abortions or that performs at least five first-trimester abortions a month.
Justice Elena Kagan pointed out that liposuction is about 30 times more risky than abortion.
Like Kennedy, Justice Samuel Alito faulted the lack of evidence on reasons for specific clinic closures, saying U.S. District Court Judge Lee Yeakel could have been more thorough in handling the case. They questioned whether abortion-rights advocates had shown the new regulations had indeed shut down many clinics and would leave women with limited options.
The primary question the high court faces is whether the Texas law is an “undue burden” on a woman seeking an abortion. “The law actually undermines the interest in health”, she said, “by causing an increase in later abortions and self-induced abortions”.
During Wednesday’s hearing, the four liberal justices expressed opposition to the law, Reuters reported. “Is there any other condition that by taking pills (is) required to be done in a hospital?”
The clinics are backed by President Barack Obama’s administration.
While hundreds rallied in Washington, D.C., dozens watched in Austin as controversial abortion restrictions passed under Texas House Bill 2 get their day at the U.S. Supreme Court. The organization says the Texas law could open the door for Colorado lawmakers to pass similar bills. That “may not be medically wise”, he told Keller, a former law clerk for Kennedy. Kennedy wrote the 5-4 opinion, famously asserting that, “some women come to regret their decision to abort the infant life they once created and sustained”.
A ruling is due by the end of June.
The impasse means that a decision on the case might be delayed until next year at the earliest, legal analysts believe.
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Separately, the justices also are mulling an emergency appeal from clinics in Louisiana. Are they going to uphold the surgical center requirement?
