Texas and Mississippi laws tightening regulations on abortion providers present the Supreme Court on Friday with another chance to enter the perennial fray, and at the most politically charged time possible.
In a closed-door session, the court’s nine justices will weigh the two states’ restrictive laws. If one or both challenge is accepted for argument, as Supreme Court watchers expect, the legal climax could come amid next year’s presidential campaign.
“I think it’s very likely,” attorney Janice Mac Avoy, who wrote a brief for the National Abortion Federation, said in an interview Thursday. “The Texas case, in particular, has received so much attention.”
The Texas case being considered at the court’s private conference Friday involves a 2013 state law that requires a physician performing an abortion to have admitting privileges at a hospital within 30 miles of where the abortion is performed. The state law also requires abortion clinics to meet standards set for ambulatory surgical centers.
This case will determine whether Texas can force more than 75 percent of the state’s abortion clinics to close by enforcing a pair of statutory requirements that serve no valid state interest.
Supreme Court brief from Whole Woman’s Health
The Mississippi case that’s also on the court’s Friday calendar involves a 2012 state law that requires all physicians associated with an abortion facility to have admitting privileges at a local hospital. Two of the three doctors at the state’s only licensed abortion clinic lack local hospital admitting privileges.
“It was designed to be impossible to satisfy,” attorneys for the Jackson Women’s Health Organization said of the law, “with Mississippi officials openly admitting at the time it was enacted that it was intended to close the last abortion clinic in the state and make Mississippi ‘abortion free.’”
Mississippi officials counter that their law is reasonable and, in any event, that the issues raised require Supreme Court resolution.
“This is not the only pending case that raises the issue of whether the enforcement of an admitting privileges law, that would result in the closure of all abortion clinics in a state for noncompliance, is constitutional,” the state’s brief, led by Mississippi Attorney General Jim Hood, noted.
In Texas, abortion providers say the state’s law would reduce the number of abortion-providing clinics to fewer than 10, nearly all in big urban areas.
The attorneys general for 12 states, including California and Washington, filed a brief urging the high court to take up the challenge to the Texas law. They argue the law imposes an “undue burden,” a legal term whose full meaning remains ambiguous.
“Given that there have been no major cases clarifying the ‘undue burden’ standard since 1992, it’s high time the court steps back in and explains how it applies here,” B. Jessie Hill, a professor at Case Western University School of Law, said in an email Thursday, adding that it’s “very likely” the court will take the cases.
Even without the pending abortion cases, the court’s 2015-2016 term has political-fallout potential. Issues already being considered include affirmative action in college admissions, mandatory fees assessed by public-sector unions and which populations count in redrawing legislative districts.
This week, the Justice Department said it would try to add immigration to the menu, by quickly appealing a lower court’s decision blocking the Obama administration’s plan to protect an estimated 4.3 million immigrants from deportation.
If they do take up the abortion cases as well, justices will be focusing on whether the Texas and Mississippi laws impose an “undue burden” on a woman’s right to abortion first identified in the 1973 Roe v. Wade decision.
The questions presented have implications far beyond cases involving admitting privileges laws and states with only one abortion clinic.
Supreme Court brief from Mississippi
A subsequent 1992 decision arising out of Pennsylvania specified that while states can regulate abortion, legislators cannot impose requirements whose “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Laws that simply make it “more difficult or more expensive to procure an abortion,” though, are permissible.
Long odds, generally speaking, face an appeal to the Supreme Court. Each year, some 9,000 petitions flood the court, and only about 75 are accepted for oral argument. At least four of the court’s nine justices must agree for a case to be heard.
Many of the rejected petitions, though, are extreme long shots filed by prisoners, often on their own behalf.
The court is most likely to accept petitions in which different appellate courts have reached different conclusions, thereby creating a “circuit split” that begs for national uniformity. The Texas and Mississippi cases were both decided by the 5th U.S. Circuit Court of Appeals.
Even so, the appellate court sided with the Texas law but went against the Mississippi law.
“The Fifth Circuit’s confusing and inconsistent applications of (the) undue burden test –upholding Texas’s admitting privileges law while striking down Mississippi’s practically identical law – reflect the need for this court’s guidance,” Mississippi’s brief states.