This case upheld a federal Partial-Birth Abortion Ban Act that prohibited a specific procedure.
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The justices began with 85 minutes of questions for supporters of abortion clinics who argue that the regulations are medically unnecessary and unconstitutionally limit a woman’s right to an abortion.
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.
The Texas case has been closely watched because it could determine how far states may go to regulate and restrict abortion. He didn’t tip his hand Wednesday, although he did ask whether the Court should send the case back for more evidence.
US Solicitor General Donald B. Verrilli Jr., representing the Obama administration, was forceful in his turn before the court.
In 2011, Missouri had five abortion providers.
The three women on the court and Justice Stephen Breyer repeatedly asked why Texas needed to enact the 2013 law.
Each of the requirements “is extremely burdensome”, she said.
The court potentially could split 4-4, with its four liberal justices opposing the abortion restrictions and its four conservatives backing the regulations, an action that would let stand a lower-court ruling that affirmed the Texas law but would not set a nationwide legal precedent.
Keller said it has never been the test that the state has to treat all medical procedures the same. Meanwhile, Justice Samuel Alito said, “As to some of them, there’s information that [abortion clinics] closed for reasons that had nothing to do with this law”. Kennedy has a mottled record where abortion is concerned: previous year he voted to stay the Texas regulations until the court ruled, and in 1992’s Casey v Planned Parenthood he passed up an opportunity to overturn Roe v Wade, yet he has supported other abortion restrictions that have found their way to the Supreme Court since.
Kennedy suggested Wednesday another outcome that would in essence put the Texas issue on hold for a time to see whether the remaining clinics in the nation’s second-most-populous state are able to accommodate the demand for abortions.
“The undue burden test is weighed against what the state’s interest is”, he said.
“Based on the argument, it did not seem that the abortion clinics would get 5 votes on any ground”, he said in a March 2 statement. A judge would then have to determine how similar Missouri’s abortion laws are to those in Texas.
However, Kennedy was at times critical of the abortion providers too.
Abortion advocates argue against such privileges because they claim abortion is safe enough without them. If Kennedy sides with the four liberal justices who clearly want to overturn H.B. Currently, a temporary court order allows one clinic in the Rio Grande Valley to remain open while the case is pending. With about 70,000 abortions a year in Texas, that works out to a rate of less than one-half of 1 percent.
The U.S. Supreme Court on Wednesday heard arguments for a Texas law that would require abortion clinics to have the same standards as surgical centers, among other restrictions.
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Another disagreement centered on whether the few abortion clinics left in Texas are capable of providing service to everyone who needs reproductive care in the state.
