WASHINGTON — The U.S. Supreme Court seemed divided on Wednesday as it heard oral argument over a Texas law that some say would result in the closure of the majority of abortion facilities in the state.
As previously reported, in 2013, following the passage of several safety regulations for abortion facilities, Planned Parenthood and other abortion advocacy groups filed a lawsuit against Texas officials, asserting that the new requirements would have an adverse affect on most facilities.
A federal judge appointed by then-President George H.W. Bush soon placed an injunction on portions of the new law, including the requirement that abortionists have admitting privileges at a hospital within 30 miles of the facility, and that facilities be held to the same standards as surgical facilities. District Judge Lee Yeakel declared the regulations an “undue burden” on a woman’s ability to have an abortion.
But as then-Attorney General Greg Abbott appealed the injunction to the 5th Circuit Court of Appeals, the three-judge panel disagreed with Yeakel that the admitting privileges requirement served no purpose. It stated that although the law would make it more difficult for women to obtain an abortion, the consequence was merely an “incidental effect,” and was “not designed to strike at the right [to abortion] itself.”
The matter was then appealed to the U.S. Supreme Court, which placed a stay on the regulations, holding them until the Fifth Circuit was able to rule on the merits of the law in light of the U.S. Constitution.
The circuit’s three-judge panel issued its final ruling on June 9, declaring that the regulations withstand constitutional scrutiny because they serve a valid purpose in protecting women’s health and do not burden a “large fraction” of Texas residents.
Abortion advocates then appealed the ruling back to the Supreme Court, which announced in November that it would hear the case.
On Wednesday, minus Justice Anthony Scalia, the court heard oral argument over the matter, with mostly liberal-leaning Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan asking questions. Ginsburg argued that childbirth is more dangerous than abortion and expressed doubt as to why the law was necessary.
“Is there really any dispute that childbirth is a much riskier procedure than an early-stage abortion?” she asked.
U.S. Solicitor General Donald Verrilli, representing the Obama administration, told the court that the law effectually “closes most abortion facilities in the state, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state.”
But Texas Solicitor General Scott Keller asserted that the regulations would not do so, as Texas is not banning abortion.
“Abortion is legal and accessible in Texas,” he said. “[A]ll the Texas metropolitan areas that have abortion clinics today will have open clinics” if the law is upheld.
Justice Samuel Alito suggested that the law is indeed necessary because of existing violations that have already been found, citing the plaintiff in the case, Whole Woman’s Health.
“Whole Woman’s facilities have been cited for really appalling violations when they were inspected: holes in the floor where rats could come in, the lack of any equipment to adequately sterilize instruments,” he said.
Alito said that there is no proof that the facilities that have closed in Texas thus far have done so as a result of the new state requirements.
“There is very little specific evidence in the record in this case with respect to why any particular clinic closed,” he stated.
It is believed that the matter might come down to Justice Anthony Kennedy, who suggested that the case might need to be sent back to the lower courts for further review.