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Scalia's Absence Looms Large as Supreme Court Hears Biggest Abortion Case in Decades

With a vacant seat on the bench, the future of US abortion law will likely hinge on a swing vote by Justice Anthony Kennedy.
Photo by Shawn Thew/EPA

All eyes were on Justice Anthony Kennedy on Wednesday as the US Supreme Court heard arguments in Whole Woman's Health v. Hellerstedt, the biggest abortion case to come before the nation's top judicial body in two decades. The eight justices who remain on the bench after the recent death of Antonin Scalia are largely divided along ideological lines — except for Kennedy, who has a mixed record when it comes to abortion cases. That means the future of US abortion law will likely hinge on his swing vote.


Scalia fiercely opposed the court's ruling in Roe v. Wade, the landmark 1973 case that legalized abortion in the US, which he viewed as fundamentally unconstitutional. With his seat vacant, the odds of a favorable or deadlocked ruling in Whole Woman's Health v. Hellerstedt could benefit pro-choice advocates. The case was brought by a number of Texas abortion clinics and three doctors who say that a state law places an "undue burden" on a woman's constitutional right to end a pregnancy.

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Three years ago, then-Texas Governor Rick Perry vowed to make abortion "a thing of a past." He proceeded to sign House Bill 2 (HB2), enacting what is widely regarded to be the toughest law on abortion in the country. The current Texas governor, Greg Abbott, has maintained support for HB2, arguing that it is designed to "improve the standard of care" and protect women's health.

HB2's opponents, such as pro-choice organization NARAL, insist that lawmakers are using concern for women's health as means to disguise efforts to "ban abortion by chipping away at access and undermining a woman's autonomy."

Women's healthcare groups, including Whole Women's Health, appealed to the US Court of Appeals for the Fifth Circuit, which voted to uphold HB2 last summer. They then took the matter to the Supreme Court.

Before the law was enacted in Texas, a woman could seek an abortion at any point in her pregnancy up to 26 weeks. HB2 put the cap at 20 weeks after fertilization. The points at which a fetus achieves "viability," where it can survive outside of the womb, or "personhood," where it thinks like a human being, are at the heart of the ideological battle around abortion. Pro-life groups argue that abortion should be banned 20 weeks after a woman's egg is fertilized because that's the point at which a fetus can feel pain.


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That argument, however, has been widely rejected by the mainstream medical community. The Supreme Court has previously ruled that states cannot put the interests of a fetus ahead of the interests of a pregnant woman until a fetus is "viable," concluding that a woman can have an abortion any time up to 22 weeks.

HB2 also says Texas abortion clinics should meet the standards required of "ambulatory surgical center," or ASC. Turning an abortion clinic into something that looks like an ASC can be incredibly expensive, sometimes costing millions of dollars.

Sarah Wheat, a spokeswoman for Planned Parenthood in Texas, said ASCs have an "onerous set of mandates" laid out in 150 pages of rules that specify details such as the exact size of the janitor's closet and the width of a facility's hallways.

Wheat and other pro-choice advocates argue that there's "no reason an abortion needs to be provided in an ASC." According to 2012 data from the Center for Disease Prevention and Control, almost 66 percent of all abortions recorded were performed by eight weeks after fertilization, and over 91 percent of abortions were carried out within 13 weeks. The majority of first trimester pregnancies (up to 12 weeks) require little to no surgery, which Wheat and others say makes the required maintenance of an ASC an unnecessary cost.


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Since HB2 was enacted, the number of abortion clinics in Texas has been halved from over 40 facilities statewide to about 20. When HB2 became law, only five clinics in Texas met the required standards.

The law also mandates that an abortion doctor has "admitting privileges" at a hospital within a 30-mile radius of their facility. This is an impossibility in some cases. In rural areas, there may be only one or two hospitals. If the hospital is Catholic-owned, for example, they may be unwilling to provide access to a local abortion doctor.

HB2 also says women seeking abortions have to have three to four separate appointments regarding their upcoming procedure. Texas is an enormous state. For many women who live in rural areas, taking time off work to drive hours to their nearest clinic for each appointment could seem like an impossibility.

Wheat notes that Planned Parenthood clinics in Dallas and Fort Worth have seen a 50 percent increase in women travelling at least a couple hundred miles because there are no longer clinics open in their communities. For women who can't afford to miss work or hire childcare, traveling those distances for four separate appointments is out of the question.

If upheld, Wheat says HB2 could have a "devastating impact" because it is "adversely impacting women who are the most vulnerable, women in rural parts of the state."


Melissa Conway, a spokeswoman for the anti-abortion organization Texas Right for Life says HB2 shouldn't be blamed for causing clinics to shut down.

"The law isn't restrictive," Conway said. "What's taking place is called a slacker's veto. The abortion industry is choosing independently to not be compliant with the law by choosing to shut down rather than adhere to the standards. It's in their financial interest."

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The Supreme Court's 1992 ruling in Planned Parenthood v. Casey struck down similar "undue burdens" faced by women who sought abortions in Pennsylvania. Those "undue burdens' included "unnecessary health regulations" that made it more difficult or complicated to get the procedure.

"The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear" the court ruled. "Her suffering is too intimate and person for the State to insist… upon its own vision."

More than 100 women have filed supporting briefs in the current case, mostly directed toward Kennedy. They have offered details of their own abortions, saying they would not be where they were now if they hadn't had access to the procedure. "Access to a safe, legal abortion saved my life," wrote one woman, who is now a public defender. "If I had not had an abortion, I would have never been able to graduate high school, go to college [or] escape my high-poverty rural county in Oregon."

If Kennedy decides that HB2 should be allowed to stand and the other justices vote as expected, the court's 4-4 decision would uphold the ruling by the Fifth Circuit Court of Appeals, allowing HB2 to remain in effect Texas. The ruling would not, however, set a national precedent that allows all states to pass similar laws to restrict access to abortion. For that to happen, another case would have to work its way up to the Supreme Court after a new justice has been appointed to replace Scalia.

Follow Tess Owen on Twitter: @misstessowen