WASHINGTON — The Supreme Court on Friday decided to hear its first major abortion case in nearly a decade, agreeing to determine how far states may go in regulating the procedure without violating a woman’s constitutional rights.
It will be one of the court’s most consequential rulings on the morally and politically divisive subject, and it will land just months before Americans choose a new president. The divide over protecting the unborn and safeguarding the right of a woman to choose is among the starkest differences between the Republican and Democratic candidates.
Numerous states have enacted restrictions that lawmakers say protect a woman’s health but abortion providers contend are merely pretext for making it more difficult to obtain an abortion or even making the procedure unavailable within a state’s borders.
The court agreed to review a sweeping law from Texas. Abortion providers say full implementation of the Texas law would reduce from 42 to 10 the number of clinics in the nation’s second-largest state. The court took no action on a case from Mississippi, where a similar law there would close the state’s only clinic if it were allowed to proceed. It was stopped in a lower court.
The outcome will turn on an interpretation of the court’s ruling nearly 25 years ago in Planned Parenthood v. Casey. It said states had a legitimate interest in regulating abortion procedures but could not impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.
Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”
Justice Anthony M. Kennedy is the only remaining justice among the three who wrote the Casey standard in 1992, and he will again be the pivotal justice in deciding whether the state restrictions violate it.
The Texas law enacted in 2013, one of the most comprehensive in the nation, requires among other things that abortion facilities meet the standards required of surgical centers. It also says that doctors who perform abortions at clinics have admitting privileges at a nearby hospital.
“The Texas Legislature here sought to increase the health and safety of abortion patients and provide them with the highest standard of health care,” according to the state’s brief to the court.
But abortion providers say the requirements are a ruse by anti-abortion legislators and governors.
“They would delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy,” wrote Stephanie Toti of the Center for Reproductive Rights, which is representing clinics in both states.
The abortion providers have the support of organizations such as the American Medical Association and the American College of Obstetricians and Gynecologists.
They, along with other medical associations, filed a brief on behalf of the clinics that said the costly surgical center requirements and admitting privileges requirements “do nothing to protect the health and safety of women and are incongruous with modern medical practice.”
“Women’s access to high-quality, evidence-based abortion care should not be limited by laws enacted under the guise of patient safety but that, in fact, harm women’s health,” the brief states
It says abortion is one of the safest medical procedures and the vast majority are conducted in doctors’ offices. It also says having admitting privileges at a local hospital for a doctor who performs abortions is unnecessary in the rare instances where a woman would require hospital treatment.
As a practical matter, religiously affiliated hospitals or those simply wanting to avoid controversy do not extend such privileges.
But lawmakers have pointed to medical officials who favor both the surgical center and admitting privileges requirements, and courts have split on whether it is up to the judiciary to second-guess the decisions of the state that extra protection for women is needed.
According to the CRR, 10 states have enacted laws requiring admitting privileges, six of which have been blocked by the courts. Six states have enacted surgical center requirements on clinics providing first-trimester abortions, four of which are in effect. Virginia is one of the four.
They are part of a swell of new restrictions on abortion passed in recent years. The CRR says 38 states have enacted at least one new law restricting abortion access since 2011.
Different three-judge panels of the U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana and Mississippi, took conflicting views of the state laws at question.
One panel let Texas’s law largely take effect. But the other blocked Mississippi’s admitting privileges law because it would have meant the state’s only abortion clinic, in Jackson, would be forced to close. The panel said it was not enough that women seeking abortions could go to a neighboring state for the procedure.
The issue before the court will produce an outpouring of conflicting studies and amicus briefs, but it seems likely that they will be directed toward an audience of one: Kennedy.
He, along with now-retired Justices Sandra Day O’Connor and David H. Souter, wrote the opinion in Casey. At the time, the compromise was seen as a great victory for abortion-rights advocates because it rejected a bid by conservatives to overturn 1973’s Roe v. Wade, which recognized a woman’s right to abortion.
But Casey also acknowledged a state’s interest in protecting unborn life and regulating abortion.
Kennedy has said he is personally opposed to abortion, and in 2007 he sided with conservative justices to uphold the federal Partial-Birth Abortion Ban Act. He wrote the opinion in that case, Gonzales v. Carhart, and it is the language in that decision that has given rise to some of the new state restrictions.
The Supreme Court already has shown its divisions in earlier litigation about the Texas law. In 2014, the court refused to step in after a preliminary decision allowed the law to go into effect. The liberal justices – Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – objected.
But in June, the court did issue a stay of a final decision by the 5th Circuit, which would have meant that the 19 clinics still operating in Texas would have been reduced to 10. This time it was the court’s consistent conservatives – Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito – who were outvoted.
In both decisions, Kennedy’s was the prevailing vote.
The Texas case, which will likely be heard in the spring, is Whole Woman’s Health v. Cole.
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