When the U.S.
Supreme Court on Wednesday hears a major abortion case for the first time in
nearly a decade, the regulations at issue will not involve fetuses or the
mother, but rather standards for doctors and facilities where the procedure is
performed.
That
the high court is taking up a case about such arcane regulations reflects the
success of a legal strategy that abortion opponents embraced about a decade ago
and initially caught some abortion-rights advocates off guard.
"It took
a while to see the impact" of state laws imposing regulations on abortion
providers, said Elizabeth Nash, a policy analyst at the Guttmacher Institute,
which tracks abortion policy and supports abortion rights.
One of the two
Texas regulations before the court requires doctors who provide abortions to
have "admitting privileges" at a local hospital so they can treat
patients needing surgery or other critical care.
Another
regulation being challenged before the Supreme Court forces clinics to have
costly, hospital-grade facilities, mandating a long list of building standards.
Unlike the "admitting privileges" requirement, it has yet to go into
effect.
Since the
Republican-backed law was passed in 2013, many Texas clinics have closed.
Abortion
providers challenging the Texas law say the Supreme Court should declare it
unconstitutional. They contend the law was intended to shutter clinics and make
it harder for women to end a pregnancy.
Texas
officials and national abortion opponents counter that the regulations were
necessary to protect maternal health.
Ten other
states also require doctors who perform abortions to have hospital admitting
privileges. Many of those laws are on hold because of litigation. Abortion
opponents in Missouri secured passage in 2005 of the first law requiring
admitting privileges at a hospital within 30 miles (48 km).
The Supreme
Court found a constitutional right to end a pregnancy in the landmark 1973 case
Roe v. Wade.
In the decades
immediately afterward, the legal strategy of abortion opponents focused on
trying to ban abortion outright or impose mandates on women such as waiting
periods or parental or spousal consent. But federal courts struck down the most
restrictive of those laws, and the Roe v. Wade ruling was upheld.
Responding to those setbacks, some anti-abortion
leaders, such as those at the Washington-based National Right to Life
Committee, urged state activists to shift to subtler tactics.
Key advocates on both sides of the debate
point to a 2007 strategy memo by James Bopp, general counsel to the National
Right to Life Committee.
Addressing what Bopp deemed "how best
to advance the pro-life cause," the memo urged abortion opponents to stop
proposing abortion bans that federal judges were rejecting, and instead push
clinic regulations and other "incremental" efforts that Bopp said
"often shut down clinics."
Another national anti-abortion group,
Americans United for Life, began using the 2005 Missouri law as model
legislation for state activists targeting abortion clinics.
In 2010 elections, abortion opponents
received a boost when Republicans made historic gains in state legislatures and
ramped up proposals targeting abortion providers.
In 2011 and 2012, Kansas, Arizona,
Mississippi and Tennessee passed admitting-privileges laws.
'OUT
OF NOWHERE'
"It was just out of nowhere,"
said Deborah Walsh, then overseeing a Knoxville, Tennessee, abortion clinic
that ended up closing because its doctors lacked the requisite hospital
affiliation.
Walsh said she wanted to sue Tennessee but
after talking to national abortion-rights lawyers, the consensus was that
litigation priorities were elsewhere.
The New York-based Center for Reproductive
Rights sued Mississippi in 2012. The group's lawyers said only one clinic
existed in Mississippi and the admitting-privileges rule threatened to shut it
down. They succeeded in blocking the rule's enforcement in a lawsuit that is
still ongoing.
The Guttmacher Institute's Nash said if
abortion rights supporters had mounted a stronger legal attack against earlier
regulations, it might have blunted the momentum that led to the 2013 Texas law.
Lawyers for abortion providers said they
picked their shots and sued in places where regulations would most curtail
abortion availability.
"We have brought cases where the
impact has been most extreme," said Julie Rikelman, litigation director at
the Center for Reproductive Rights, representing Whole Woman's Health, suing
Texas in the Supreme Court case.
In addition to Texas, five other states
passed admitting privileges laws in 2013 and 2014.
Conditions for such privileges vary. Some
hospitals require doctors to live within a certain distance of the hospital and
admit a minimum number of patients per month. Some hospitals do not offer
privileges to doctors who do abortions.
At the Supreme Court, the Feb. 13 death of
conservative Justice Antonin Scalia could lead to a tie vote, with its four
liberals and four conservatives on opposite sides. If the justices split 4-4,
no national legal precedent would be set but the lower court decision upholding
the Texas law would stand.
That would leave the Texas law intact and
could embolden legislatures in other states with strong opposition to abortion
to enact similar measures.
It also is possible that conservative
Justice Anthony Kennedy, who has voted for the basic right to abortion but
endorsed many restrictions, would join the court's four liberals to strike down
the Texas law.
A ruling in the case is due by the end of
June. The Supreme Court's last major abortion ruling was in 2007 when it upheld
a federal law banning a late-term abortion procedure.
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