A Supreme Court majority may rule today to let states impose more restrictions on abortion, concluding that the high court’s landmark abortion decision continues to trigger “inappropriate” restrictions, particularly in the early weeks of pregnancy.
The high court will hear oral arguments in the second of two closely watched abortion cases being heard Wednesday, when it is expected to announce whether it will revive a Texas law that clinics fear would put clinics out of business in the state.
But perhaps no decision Wednesday will carry as much import for women’s health in the future as its ruling on the more sweeping Texas law. In an April 30 opinion, Justices Anthony M. Kennedy and Samuel A. Alito Jr. joined by Chief Justice John G. Roberts Jr. struck down one of the provisions, saying it would create the “strong possibility” that clinics would stop offering abortions.
In a June 2009 decision, the court said states have a right to impose restrictions on abortion. But the majority noted in the Texas case that the state also had the power to meet its legitimate interest in limiting the risk of serious injury. The majority in that case, however, said that Texas had placed too many restrictions on abortion before the woman’s fetus was viable.
In a case heard last month, the court will consider whether states may substantially impose on abortion providers new requirements that interfere with a woman’s right to an abortion. The provision at issue, called 24-hour waiting periods and which faced partial victory in the Texas case, would make it almost impossible for a woman to obtain an abortion without seeing a doctor.
If the court rejects the restrictions, legal analysts see a scenario in which Congress could step in to codify current restrictions or create new ones. More than a dozen states, including Arkansas, North Dakota and South Dakota, have enacted laws that would ban abortion after 20 weeks of pregnancy. Supporters of the states’ laws say they want to protect the health of women and impose regulations that would ensure that fetuses develop normally, but reproductive rights advocates contend that the laws amount to cruel and unusual punishment.
The court is expected to issue a more sweeping ruling on the issue Wednesday in a case pitting a federal law on abortions sought by victims of rape and incest against a state law that allows the procedure only in cases where the mother’s life is endangered.
The Obama administration said that it will defend the restriction in the case. But five states — Texas, Alabama, Mississippi, North Dakota and West Virginia — and the Roman Catholic Archdiocese of Washington, D.C., filed friend-of-the-court briefs on behalf of Planned Parenthood, one of the biggest abortion providers in the country. The restriction was pushed by Texas Gov. Rick Perry, R, and has been backed by the conservative groups Texas Right to Life and the Texas Coalition for Life.
Stuart Gaffney, an attorney for Planned Parenthood, said the restrictions would cut off access to the practice in some areas and “no one disputes that women in those states are being denied their constitutionally protected rights.”
While justices have found that states may impose restrictions on abortion before the fetus is viable, they have stopped short of striking down every restriction. When the court struck down two Texas laws — one requiring doctors to have admitting privileges at nearby hospitals and the other requiring that abortions be performed in surgical centers — it told states they had “plenty of ways” to try to regulate abortion, but said they “are out of bounds where the essential question is, Are abortions necessary?”
In the Supreme Court cases, Alito and Justice Antonin Scalia, joined by Kennedy, seemed ready to go far beyond that statement, making clear that states may impose restrictions on abortion during the first trimester, even if the woman would not necessarily be jeopardized. The court could strike down abortion requirements if they were seen as unreasonable, Alito said.
“A state may, for example, impose conditions on the procedure consistent with its First Amendment interests, but such requirements must be sufficiently tailored to advance the real or substantial state interest in the least restrictive means of achieving that interest,” Alito wrote.
In the Texas case, Alito said, “the Legislature may try to find a way to regulate abortion without explicitly imposing medically unnecessary hurdles. It may then put those burdens into place, targeting the procedure only after fetal viability.”