Supreme Court to Hear Texas Abortion Case

Last week the Supreme Court agreed to hear a challenge to Texas’s recently passed anti-abortion legislation which places restrictions on clinics legally eligible to perform abortions.  The law has withstood a legal challenge in lower federal court, but will receive final decision by the Supreme Court which is taking on its first abortion case since 2007.

Texas Law Regulates Abortion Clinics and Doctors

Texas’s new abortion legislation gained national attention last year by openly testing the limits of the Supreme Court’s stance on legalized abortion first articulated in 1973’s Roe v Wade and clarified in the 1992 Planned Parenthood v Casey case.  Under the refined federal position on abortion articulated in Casey states may not pass legislation which creates an undue burden on the constitutional right to abortion which is guaranteed prior to fetus viability.  According to the Casey Court, an undue burden includes “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Since the Casey decision Conservatives have attempted to produce constitutionally valid legislation which regulates and restricts abortion, and in July 2013 Texas legislators designed and passed a bill which increased standards clinics and doctors conducting abortions must meet.  While the law was presented with intention of ensuring medically safe abortions to women in Texas, its effect drastically reduced the number of clinics and doctors where women could go to have the procedure done from over 40 to around 10 statewide. 

According to plaintiffs in Whole Woman’s Health v Cole, this drastic reduction in available abortion clinics would place an undue burden on many women across the state who would have to find the means to drive hundreds of miles in order to find an eligible clinic.  Challengers to the law filed a lawsuit alleging it is unconstitutional, and after the United States Court of Appeals for the Fifth Circuit upheld the legislation the Supreme Court has agreed to issue a final decision on the issue.

Supreme Court to Decide Texas Abortion Case

After granting a temporary stay on the 5th Circuit’s decision the Texas abortion law was constitutional, the Supreme Court has agreed to decide the case in its upcoming term.  In the meantime, the clinics which would have been close to accommodate the law will remain open and operational unless the Supreme Court upholds the legislation.  Central to the Court’s decision will be whether or not Texas’s law creates the prohibited undue burden on women who seek to exercise their constitutional right to have an abortion prior to fetus viability.  According to Texas officials the law falls within the legislature’s constitutionally purview because it establishes medical safety standards for abortion clinics and doctors.  Defenders of the Texas abortion law argue the state has a right to ensure safe and reliable abortion procedures, and the closure of clinics which are not up to code is justified by increased scrutiny designed to promote safe medical facilities.

Opponents, including many medical professionals, counter the standards set by Texas’s 2013 abortion law go far beyond requirements for safe medical procedures, and are designed with the knowledge that enforcement of the legislation would drastically reduce the number of available clinics.  Opponents to the legislation argue Conservative interest in passing the bill is driven by political objectives rather than the professed concern for women’s health, and point to the drastic measures many women across the state would need to take in order to have an abortion as evidence of undue burden.

Given the state’s rights argument supporting the Texas law, it is easy to see the four Conservative judges offering a federalism position to uphold the law while the Liberal bloc will counter with a finding of undue burden.  With two entrenched positions likely, it could be up to Justice Kennedy, who wrote the majority opinion in 1992’s Casey, to once again deliver a critical deciding vote.

Texas Abortion Decision May Take Center Stage in Election Year

 The Supreme Court will likely release its abortion opinion, along with opinions on public unions, immigration, affirmative action, and contraception coverage, in mid to late June of 2016.  The timing of the opinion will coincide with what promises to be an increasingly tense election year, setting up abortion as a potential key issue in next year’s pivotal election year.

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