Scalia, a staunch abortion rights opponent, died last month and the court could be operating with eight justices for many months amid an impasse over confirming a successor. The case being heard is a Texas law requiring doctors to have admitting privileges at local hospitals and that clinics upgrade their facilities to hospital like standards.
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But Kennedy also appeared concerned by the medical consequences of the Texas law, which some say has made it hard to obtain an early medical abortion (performed by taking two pills) and therefore increased the rate of surgical abortions, which usually occur later in a pregnancy.
Whole Woman’s Health follows an appeals court ruling that upheld the Texas clinic shutdown law.
The three women on the Supreme Court led an attack Wednesday on a Texas law that would shut down about three-fourths of the state’s abortion clinics.
Lithwick says if the Court splits, the lower court opinion from the Fifth Circuit becomes controlling law, but only on the Fifth Circuit – enforceable in Louisiana, Texas and Mississippi.
Texas Solicitor General Scott A. Keller insisted the law is for women’s own protection, and that in some parts of the state women can access nearby clinics – in New Mexico.
Although the case pertains to Texas laws, the Supreme Court’s decision could eventually have an impact on Missouri’s abortion laws because the statutes in both states are so similar, Elizabeth Nash, senior state issues associate at the Guttmacher Institute, said.
A ruling is expected in June and it could be impacted by Scalia’s death.
“Basically, your argument is that the law took effect, and after that point, there was a decrease in the number of clinics”, Alito said. “It purports to protect maternal health. but it’s going to have the effect of making sure that hundreds and thousands of Texas women either have to drive 150, 200 miles to clinics that are giving them 20- and 30-day waiting periods”. Richard Blumenthal (D-Conn.), Rep. Marc Veasey (D-Texas) and Rep. Jan Schakowsky (D-Ill.) – spoke to a crowd of protesters who gathered to oppose the law.
Why do abortion supporters claim HB2 poses an “undue burden?”. Roberts asked. Only Justice Clarence Thomas, who broke 10 years of silence at arguments on Monday, did not ask any questions. That means the crucial issue may be not how many women will have to drive how much farther to get abortions as a result of H.B. 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.
Alito added, “Well, there is very little specific evidence in the record in this case with respect to why any particular clinic was closed”. That would be Planned Parenthood v. Casey in 1992, the case that set the prevailing standard for abortion laws. The same federal appeals court has allowed that state’s admitting privileges law to take effect while a legal challenge winds its way through the courts, even after a trial judge struck it down as unconstitutional. Justice Sonia Sotomayor, for example, asked if getting a dilation and curettage in a doctor’s office is any riskier than getting an abortion; Toti called the procedures “virtually identical”.
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It’s a huge case for Texas that will echo across the country, and in Wednesday’s hearing, it was clear the Supreme Court is deeply divided on abortion restrictions.
