Health Care

The Next Challenge to Roe v. Wade

A Texas case could be on the way to the Supreme Court

Anti-abortion demonstrators protest in front of the US Supreme Court during the 41st annual March of Life in Washington, DC, January 22, 2014. Held around the anniversary of the Supreme Court's Roe v. Wade decision, the march draws thousands from around the country for a rally on the National Mall before marching up Capitol Hill to the US Supreme Court. AFP PHOTO / Saul LOEB 
National Journal
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Sophie Novack
Jan. 21, 2015, 1:52 p.m.

Con­gres­sion­al Re­pub­lic­ans’ plans to mark the 42nd an­niversary of Roe v. Wade Thursday with a House vote on a meas­ure to ban abor­tions after 20 weeks have already fallen apart. That bill was primar­ily a mes­sage vote. But there’s an­oth­er piece of le­gis­la­tion from out­side of Wash­ing­ton that could pose a far great­er and more im­me­di­ate threat to abor­tion ac­cess.

A Texas law which has already shuttered at least half of the state’s abor­tion clin­ics is mov­ing its way through the fed­er­al court sys­tem and could end up at the Su­preme Court. The case would not pose a dir­ect threat to the Roe v. Wade de­cision es­tab­lish­ing the con­sti­tu­tion­al right to an abor­tion, but it would force the Court to de­term­ine wheth­er the Texas law — and oth­ers like it — go too far in lim­it­ing ac­cess. Ac­cord­ing to the 1992 Su­preme Court de­cision in Planned Par­ent­hood v. Ca­sey, state lim­it­a­tions can­not cre­ate an “un­due bur­den” to abor­tion ac­cess.

The Texas law has thus far largely sur­vived fed­er­al court chal­lenges, but its op­pon­ents are com­mit­ted to see­ing the case all the way to the high court if ne­ces­sary. If it lands at the Su­preme Court, the stakes are high for abor­tion ac­cess: a rul­ing against the state would force Texas to roll back its re­stric­tions, while a rul­ing in the state’s fa­vor could pave the way for sim­il­ar abor­tion re­stric­tions na­tion­wide.

A three-judge pan­el of the U.S. Court of Ap­peals for the 5th Cir­cuit heard or­al ar­gu­ments on two pro­vi­sions of the law earli­er this month, and a de­cision is ex­pec­ted in the com­ing weeks. Both sides are ex­pec­ted to ap­peal to the Su­preme Court if they lose. Justice Steph­en Brey­er has in­dic­ated that at least four mem­bers would be open to hear­ing the case, mak­ing it likely the Court will de­cide to weigh in.

There were more than 40 abor­tion clin­ics in Texas in 2011. There are few­er than 20 open now, fol­low­ing the im­ple­ment­a­tion of the bill’s re­quire­ment that all doc­tors per­form­ing abor­tions have ad­mit­ting priv­ileges at a nearby hos­pit­al. The fi­nal pro­vi­sion — re­quir­ing all abor­tion fa­cil­it­ies to meet the same phys­ic­al stand­ards as am­bu­lat­ory sur­gic­al cen­ters — was blocked by the Su­preme Court. If it is al­lowed to go in­to ef­fect, only six or sev­en clin­ics will be al­lowed to re­main open.

“Texas is in­ter­est­ing be­cause we’ve seen the chip­ping away ef­fort that the oth­er side en­gages in on a fast-for­ward pace,” said Bri­gitte Amiri, seni­or staff at­tor­ney at the ACLU’s Re­pro­duct­ive Free­dom Pro­ject, who worked on the first chal­lenge to the Texas law. “We’ve seen the slow chip­ping away in oth­er states, but in Texas, it’s all in a very short amount time, with the num­ber of clin­ics drop­ping dra­mat­ic­ally in a few years.”

The Texas law is part of a wave of an­ti­abor­tion le­gis­la­tion passed by con­ser­vat­ive state le­gis­latures in re­cent years. Thirty states en­acted 205 an­ti­abor­tion meas­ures between 2011 and 2013, ac­cord­ing to the Guttmach­er In­sti­tute, which sup­ports abor­tion rights.

Yet on­go­ing court battles in a num­ber of these states have put many of these laws on hold. States in­clud­ing Alabama, Louisi­ana, Mis­sis­sippi, and Wis­con­sin have passed ad­mit­ting priv­ileges laws, but they have been blocked by the courts while lit­ig­a­tion con­tin­ues. Texas is the only state where this re­quire­ment has been al­lowed to go in­to ef­fect.

Pro­ponents of these laws say they are in the in­terest of wo­men’s health and safety, while op­pon­ents ar­gue they are polit­ic­ally mo­tiv­ated, and med­ic­ally un­ne­ces­sary.

“I have every con­fid­ence that the reg­u­la­tion of abor­tion fa­cil­it­ies in this mat­ter will be found con­sti­tu­tion­al,” said Dan Mc­Conch­ie, vice pres­id­ent for gov­ern­ment af­fairs at Amer­ic­ans United for Life, an ad­vocacy group that worked on parts of the Texas le­gis­la­tion. “We ad­vance any type of le­gis­la­tion that pro­tects hu­man life — in­clud­ing help­ing to re­duce the num­ber of abor­tions per­formed, and en­sur­ing wo­men don’t die at the hands of abor­tion pro­viders.”

A Su­preme Court rul­ing could give a red or green light to oth­er state laws, es­tab­lish­ing a more uni­ver­sal stand­ard over what has thus far been a patch­work of court de­cisions.

Both sides say they don’t know how the Court would ul­ti­mately rule, but leg­al ex­perts say it would be a big­ger gamble for abor­tion-rights act­iv­ists.

“The stakes are fant­ast­ic­ally high,” Tom Gold­stein, part­ner at Gold­stein & Rus­sell and the cofounder and pub­lish­er of SCOTUS­b­log, told Na­tion­al Journ­al last Spring. “A sig­nal from the Su­preme Court one way or the oth­er would be watched closely by state le­gis­latures. To the ex­tent pro-choice ad­voc­ates are look­ing for­ward, [hop­ing for a Su­preme Court rul­ing] would be mak­ing a ser­i­ous mis­take. But they may view them­selves as hav­ing no choice.”

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