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.
(Reporting by Joan Biskupic; Additional reporting by Jilian Mincer; Editing by Amy Stevens and Will Dunham)