Texas abortion law faces eight-justice gauntlet

WASHINGTON—For the first time in nine years, the U.S. Supreme Court will hear arguments in a major abortion case that marks a new direction in the movement to save unborn babies.

“This is by far the most important abortion case the Supreme Court has heard in 24 years,” said Stephen Vladeck, a Supreme Court fellow of the Constitution Project, at a Capitol Hill briefing Wednesday. “The terrain has shifted from the concern of the fetus to concerns of the health of the pregnant woman.”

On March 2, the court will hear arguments in Whole Woman’s Health v. Hellerstedt, which concerns a Texas law requiring abortionists to have admitting privileges at nearby hospitals and abortion facilities to meet certain surgical safety standards. The regulation effectively limits abortions to metropolitan areas in the Lone Star State, since large swaths of Texas do not have proximate required facilities. Supporters of the bill say the measure is needed to protect a woman’s health if something goes wrong during an abortion.

On Sunday, HBO dedicated an entire episode of its Last Week Tonight with John Oliver to the abortion debate and specifically Whole Woman’s Health v. Hellerstedt. Oliver called the Texas laws “a disingenuous labyrinth of hoops and hurdles that essentially make it nearly impossible for women” to get an abortion. Abortion supporters label the measure in Texas and those like it as Targeted Regulation of Abortion Providers or TRAP laws.

Trapped is a documentary by filmmaker Dawn Porter that tells the stories of abortion centers trying to stay open in Texas and other southern states. The film premiered at this year’s Sundance Film Festival, where it won the Special Jury Award for Social Impact Filmmaking. It opens in theaters March 4.

Amid the growing uproar over Whole Woman’s Health v. Hellerstedt, a likely pro-abortion verdict looms. Even if the late conservative Justice Antonin Scalia had survived to hear the arguments, the court might still have overturned the 5th U.S. Circuit Court of Appeal’s decision to keep the safety measures in place. The Supreme Court voted 5-4 to stay part of the 5th Circuit’s decision and place on hold the safety requirements for abortion facilities.

Justice Anthony Kennedy joined the four left-leaning justices to question the Texas law as an intrusion on the 1992 standard, set forth in Planned Parenthood v. Casey, that states not impose an “undue burden” on abortion access.

“It seems that Justice Kennedy, who is no great fan of the pro-choice movement, might still think that Texas went too far in this case,” Vladeck said. If Kennedy chooses to uphold the Texas law, the decision would most likely end with a 4-4 tie, upholding the 5th Circuit ruling and allowing the law to take effect, but without a universally applicable opinion. Vladeck said if that happens, the case could appear before the Supreme Court again as soon as next year to go before a full nine-person bench.

President Barack Obama said in a Wednesday SCOTUSblog post he is taking his duty to appoint a new justice seriously and plans to do so “in the weeks ahead.”

But Sen. Chuck Grassley, R-Iowa, and the rest of the Republican Senate Judiciary Committee members signed a letter Tuesday pledging not to hold hearings on any Supreme Court nominees until after a new president takes office in 2017. Senate Majority Leader Mitch McConnell, R-Ky., said on the same day that the party has no intention to go through the motions of confirming a new justice.

“The overwhelming view of the Republican conference in the Senate is this vacancy should not be filled by this lame-duck president,” McConnell told reporters.

Vladeck explained regardless of what happens, the next member of the Supreme Court will be sworn in after the court decides on the docket of cases for next year’s term. He predicted the court would take on fewer and less controversial cases knowing it could be short-staffed to start the year: “We are looking at the court keeping the status-quo in a number of these cases.”

If the Senate blocks Obama from getting a new justice on the bench, it could be well into 2017 before a replacement is sworn in.

“Optimistically the earliest you could have a confirmed successor for Justice Scalia is the middle of March 2017,” Vladeck said. “And that’s if the Senate moved quickly, … and when was the last time the Senate moved quickly?”