The Abortion Case the Supreme Court May Find Hard to Refuse

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A girl holds a sign during an anti-abortion rally at the State Capitol in Austin, Texas, July 8, 2013. REUTERS/Mike Stone

From the Rio Grande Valley in Texas it is around 150 miles to Corpus Christi and the nearest operating abortion clinic.

"You know how long that takes in Texas at 75 miles per hour?" Judge Edith Jones said at an appeals court hearing last week. It was a rhetorical question. "This is a peculiarly flat and not congested highway."

The conservative judge, a Reagan appointee on the Fifth Circuit Court of Appeals, was skeptical that requiring women to drive 150 miles each way to a clinic - one effect of Texas's new anti-abortion law - is a substantial obstacle to obtaining an abortion.

But the abortion providers and advocates fighting Texas's new anti-abortion law in court argue that the long drive, especially when piled on top of the other restrictions on the state's books, is most certainly a serious barrier to abortion access. It doesn't help that on September 1 the Corpus Christi clinic will stop offering abortions and that the next closest clinic is a 600-mile round-trip.

"This is the second largest and most populous state. We have huge areas of the state that are now completely without providers, all of west Texas and all the Rio Grande Valley," said Heather Busby, executive director of NARAL Pro-Choice Texas, an abortion rights group.

"I tend to disagree that the flatness of the road mitigates the fact that you still have to travel hundreds of miles, and if you don't have transportation or resources to pay gas and lodging and for that transport, it doesn't matter how flat the road is and how fast you can drive," she said.

Jones's comments during oral arguments did more than anger abortion advocates. They hit on the central question in a high stakes abortion case that is likely to end up in the Supreme Court before long: How far can a state go in erecting hurdles to abortion access before the hurdles becomes unconstitutional?

The Supreme Court does not like to take up the issue of abortion. In the past two decades, it has only reviewed a handful of abortion-related cases. Rejecting many recent opportunities to rule on abortion, the high court has instead sent the distinct message that it doesn't want to meddle with the prickliest issue in American politics.

But that could soon change. In the last three years, states across the country have passed more abortion restrictions - more than 200 laws - than in the preceding decade. Abortion rights groups have challenged many of these laws in court, and the cases have been bouncing around the court system. At some point, the supremes may relent. And when they do, court watchers believe they might take the Texas case currently heading their way.

With four pro-abortion rights justices on the court, four justices against, and a wobbly, unpredictable Justice Anthony Kennedy in the middle, it seems neither side has wanted to risk what would happen if the highest court in the land took on the abortion issue. For pro-choice advocates, putting all their eggs in the Kennedy basket is a scary proposition.

But the Texas case could be different, not least because four Supreme Court justices have demonstrated an interest in the Texas case. When abortion providers and pro-choice groups asked the Supreme Court late last year to put the new Texas law on hold until its constitutionality was resolved by the courts, they lost and much of the law went into effect. But the four liberal justices noted in a dissent that they might want a chance to weigh in on the case.

"[The] underlying legal question - whether the new Texas statute is constitutional - is a difficult question," Justice Stephen Breyer wrote in November. "It is a question, I believe, that at least four members of this court will wish to consider, irrespective of the Fifth Circuit's ultimate decision." If four justices vote to take a case, the court takes it.

"This could be the next Supreme Court case," said Adam Winkler, a constitutional law expert at the UCLA School of Law. A likelihood that increases, Winkler believes, as challenges to similar provisions in separate states also wind their way through the courts, potentially setting up a split in the circuits for the Supreme Court to resolve.

Deciding to go to the Supreme Court is a serious decision that abortion rights advocates do not take lightly because a loss would open the door to anti-abortion legislation throughout the country. Groups like Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union, which often litigate abortion cases, are careful over which laws they will challenge and how far they will take those challenges before backing down.

But in the Texas case, pro-choice groups are expected to ask the Supreme Court to take their case if the Fifth Circuit panel rules against them. With the Texas law in effect and its impact playing out on the ground, the Texas case presents a compelling set of facts in their favor.

"The facts here were so compelling, which was that so many of the providers here had to stop providing abortions," said Janet Crepps, senior counsel at the Center for Reproductive Rights who argued for the Texas abortion providers before the Fifth Circuit. "I don't think that they've had a case like that in recent history. I think that's why at least those four justices indicated that they would be interested in the case."

In July 2013, the Republican-run Texas legislature passed House Bill 2 (HB 2), a draconian bill to ban some forms of abortion and make the procedure more difficult to acquire. (It was passed despite the filibuster of state Senator Wendy Davis, now the Democratic candidate for governor.) It banned abortion at 20 weeks, placed a de facto ban on medication abortions by requiring doctors to prescribe a dosage they no longer deem safe and required all abortions to take place in ambulatory surgical centers - a provision that will kick in this September and is expected to shut down abortion services at all but six clinics in the state. Finally, the bill required that abortion providers have admitting privileges at a hospital within 30 miles of the clinic.

Due to this last provision, nine of the state's 34 clinics are not performing abortions today. Researchers at the University of Texas predict the bill will cost more than 20,000 Texas women access to abortion services.

In a legal challenge to the medication and admitting privileges portions of the law, a district court judge held last fall that the former was generally acceptable (if it allowed for medically necessary exceptions) but that the latter was unconstitutional. The admitting privileges requirement, the judge found, placed an undue burden on a woman's right to obtain an abortion. But the Fifth Circuit Court of Appeals allowed the law to take effect as the two sides litigated the case, and the Supreme Court upheld that decision.

The Fifth Circuit is expected to hand down its decision in the next few months. A panel of three Republican-appointed judges is likely to uphold the law, at which point the abortion providers are expected to ask the Supreme Court to take their case, though Crepps said they could not speculate on what the outcome would be.

Once before the Supreme Court, both pro-choice and pro-life factions have a lot to gain and a lot to lose.

The case would allow the Supreme Court to clarify the "undue burden standard," an ambiguous test set up in the 1992 case Planned Parenthood v. Casey that said an abortion regulation was unconstitutional if it had "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

If the Supreme Court found that the provisions of HB 2 are not an undue burden, that would pave the way for many states to virtually eliminate legal abortion through excessive regulation. But if the conditions on the ground in Texas fail the undue burden test, the win would help pro-choice advocates beat back similar laws across the country.

"People obviously have different views about what is an undue burden. That's what makes this Texas case so fascinating and so potentially significant," said Jonathan Entin, a constitutional law professor at Case Western Reserve University School of Law. "This is certainly an opportunity for the [Supreme] Court to clarify."

In many cases concerning abortion bans and regulations, the laws are put on hold until a court challenge is resolved. But in the Texas case, where the law went into effect last fall, the effects of the law are on full display. That fact could help Crepps and her team show that the law is in fact a substantial barrier to abortion access.

"In the Rio Grande Valley, there used to be two providers and now there are none," she said.

"Let's put it this way: when the clinics are shutting down, that's a pretty good indication that there's a problem," Entin said.

On its surface, the case is about the undue burden standard and Casey, rather than Roe v. Wade. That's another reason the Supreme Court might be more willing to take the case - they could weigh in on abortion regulation without reconsidering Roe.

But at some point, the justices can't avoid rethinking Roe, and what it means to have a right to an abortion.

"The question is whether it makes sense to continue to avoid addressing Roe v. Wade," Winkler said. "I mean, this law effectively overturns the right of women to get abortions in various regions in the state of Texas. Can they go elsewhere to exercise that right? Yes. But we shouldn't have NIMBY [Not In My Back Yard] for rights. You should be able to exercise your rights in every region of every state."

Which brings us back to the 150-mile drive many Texas women must now make. Some women can make that trek, others can't. The case may be about a few regulations, but it could determine whether abortion is a right everywhere or just somewhere.

"Judge Jones didn't seem concerned about the 300-mile round-trip to Corpus Christi," Crepps said. "But the evidence in the district court showed that absolutely was going to prevent women from getting abortions."

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