Can Mississippi shut down its last abortion clinic with a law requiring abortion providers to have local hospital admitting privileges, even if the vast majority of experts think it is medically unnecessary? Can Texas decide all abortions have to take place in special mini-hospitals, even if all a patient is doing is taking a pill to induce a miscarriage? And is there really a constitutional right to abortion, as the Supreme Court has repeatedly said there is, if states can invent laws that make abortion basically impossible to access while some federal courts basically shrug?
By early next week, the country will hear if the Supreme Court is ready to answer any of those abortion questions. Americans will also hear about the fate of a major portion of the Affordable Care Act and same-sex unions in 14 states. This Thursday, the justices are set to meet in their secret conference to decide which cases to hear, and when to leave a lower court’s determination in place. For the fifth time, the Mississippi abortion clinic case is on their agenda. Unlike the previous four conferences, the justices also have before them an emergency request from Texas.
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There, abortion providers are fighting a state law requiring that all abortions take place in ambulatory surgical centers, which would close more than half of clinics there. They want the justices to temporarily block the 5th Circuit Court of Appeals decision that threatens to leave nearly 1 million women of reproductive age more than 150 miles from a legal abortion clinic, and then to hear the case next term and declare the law unconstitutional. Unless the justices act in their favor, 10 clinics will be forced to close, and an 11th would only have very limited services, beginning July 1. The last announced day of the Supreme Court term is June 29.
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Advocates for abortion rights have already gotten some limited good news from the court. On June 15, the court announced it would not hear an appeal from North Carolina, leaving blocked a law that would have required doctors to describe fetal ultrasounds to abortion patients. (Justice Scalia dissented from that decision, without comment. His wife has been active in the crisis pregnancy centers for whom ultrasounds are a cornerstone of trying to talk women out of abortions.) A federal appeals court said the North Carolina law violated the free speech rights of doctors and patients.
But the real question will be whether Justice Anthony Kennedy will balk at the most restrictive of the hundreds of abortion regulations that have passed in recent years. The credentialing and building requirements levied on clinics sound the most benignly medical, but are opposed by organizations like the American Medical Association and the American College of Obstetricians and Gynecologists, who say they actually harm women. Such laws, known in the abortion rights community as TRAP laws (for targeted regulation of abortion providers) are passed in the name of women’s safety, but may ultimately simply make abortion impossible to access.
The last time the court decided a major abortion case, the 2007 case Gonzales v. Carhart, Kennedy horrified feminists by upholding a ban on an abortion procedure, partly on the grounds that women had to be protected from their own decisions. Abortion rights supporters have been spooked out of relying much on the Supreme Court ever since. But there is no avoiding the fact that a series of decisions from the 5th Circuit Court of Appeals — a famously conservative bench — have devastated abortion access for millions of women, and there is nowhere left to go. It’s the Supreme Court or bust.
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Such laws are rippling across the country.
On Monday, a trial began in federal district court for Louisiana’s law requiring that abortion providers have admitting privileges at local hospitals, a law already in effect in Texas and the same one at stake in Mississippi. (The same law was also blocked by federal courts in Wisconsin and Alabama, and a challenge is underway in Oklahoma state court.) Challenges from Louisiana, Texas, and Mississippi all end up in the 5th Circuit Court of Appeals, which has rarely seen an abortion restriction it didn’t like. Court watchers on both sides of the issue are now wondering whether Kennedy is ready to undo the commitment to abortion as a constitutional right that he made in the 1992 case Planned Parenthood v. Casey.
“Casey has now been the law of the land longer than Roe itself,” wrote Yale Law School’s Linda Greenhouse and Reva Siegel this week. “The moment has arrived for the Supreme Court to demonstrate its fidelity to the compromise it struck nearly a quarter-century ago. Women have actual, not politically manufactured, health concerns at stake.”
Irin Carmon