The Supreme Court will hear oral arguments Wednesday in the biggest abortion case to hit the docket in two decades.
The case, Whole Woman’s Health v. Hellerstedt, could decide whether Texas can enforce one of the nation’s strictest abortion laws. The outcome will have broad repercussions on abortion access as well as the election-year fight over replacing the late Justice Antonin Scalia.
Only eight justices will hear the case, raising the possibility that the case will deadlock in a 4-4 tie. If that happens, a lower court ruling that upheld the Texas law would stand, though it wouldn’t set a precedent nationwide.
Lawmakers said the case shows what’s at stake in November, when both parties hope they will win White House and the opportunity to tilt the court’s ideological balance.
“There’s no question, it’s a big one,” Rep. Trent FranksHarold (Trent) Trent FranksOn The Trail: Arizona is microcosm of battle for the GOP Arizona New Members 2019 Cook shifts 8 House races toward Dems MORE (R-Ariz.), one of Congress’s strongest opponents of abortion rights, said of the case.
Since its passage in 2013, the Texas law has been held up as the gold standard for state legislation tightening access to abortion.
Both provisions of the law that are being challenged place mandates on abortion clinic operations, requiring them to meet the standards of hospital-style surgical centers. The law also requires that abortion doctors have admitting privileges at hospitals within 30 miles.
A decision to uphold or strike down the law would have immediate effect on dozens of states with similar legislation.
Texas is one of 22 states that have passed laws on surgical-center requirements and and one of eight states that require doctors to have admitting privileges, according to a report released Tuesday by the Guttmacher Institute.
Abortion rights advocates say the case could be a watershed moment.
“We see it as having tremendous opportunity for being an incredibly significant case,” said Nancy Northup, the president and CEO of the Center for Reproductive Rights, which is representing the plaintiffs in the case.
The big question facing the court is whether the Texas law creates an “undue burden” for women seeking abortion. Long-time court watchers believe a split court is likely, though opponents of the Texas law hope to win over Justice Anthony Kennedy, who sided with the court’s moderates in the last major abortion case, in 1992.
“The impact is enormous,” said Marjorie Dannenfelser, president of the nonprofit Susan B. Anthony List. “What undue burden means is vital in determining what future legislation will be.”
Six states are now facing legal challenges to their abortion laws, including Mississippi, which is in the Fifth Circuit. That means in the case of a 4-4 decision, Mississippi’s law could be allowed to stand because the Fifth Circuit’s ruling would remain intact.
The plaintiffs argue the law is already having dangerous effects. Amy Miller, the president and CEO of Whole Woman’s Health, said the state has seen “many examples of women who have been forced to take matters into their own hands.”
Already, more than half of Texas’s clinics have shuttered, leaving 19 open. Women in the Fort Worth area are waiting between 20 and 30 days for an appointment, she said. Some women have called in to ask about inducing abortions with cleaning products.
“We’re not talking about just driving 10 minutes or waiting just a day or two,” Miller said.
Sen. Patty MurrayPatricia (Patty) Lynn MurrayFaith leaders call on Congress to lead the response to a global pandemic Conservation group says it will only endorse Democrats who support .5T spending plan Support the budget resolution to ensure a critical investment in child care MORE (D-Wash.) on Tuesday said upholding the law would leave the state of Texas with just 10 clinics for 5.4 million women.
“Hundreds of thousands of Texas women would have to drive 300 miles round trip just to get the care they need,” Murray said from the Senate floor. “If that isn’t an undue burden, I don’t know what is.”
Opponents of abortion rights argue that the Texas law is intended to protect women from unsafe or unqualified abortion doctors.
“If they don’t uphold this right, to uphold standards, then it is an act of discrimination against women,” said Dannenfelser, who is taking part in a rally in front of the court Wednesday. “It’s bringing women back to pre-1973 horror” of unregulated clinics.
Numerous national health groups have criticized the law as medically unjustified. In a call with reporters, Dr. Hal Lawrence, CEO of the American College of Obstetricians and Gynecologists, described abortion as “safer than childbirth.”
Those opposed to the law have also argued it is merely a political tool to restrict access. Many have cited former Texas Gov. Rick Perry, who said six months before signing the law that he wanted to make abortion “a thing of the past.”
Nationally, public opinion remains virtually split on the issue of abortion. But both sides believe the issue will give them an edge in the election this fall, particularly with the open Supreme Court seat at stake.
“You’ve got a large group of people on both sides, but of the people that are truly committed, that will vote on that issue alone, it’s about four-to-one pro-life,” said Franks, who has authored three anti-abortion-rights bills this session.
But opponents of the law are also preparing election-year pitches, particularly in a 4-4 decision.
Abortion-rights activists say they’ll drum up support among Democrats to elect a president who would pick a Supreme Court justice who could be the deciding vote when the case — or a similar one — comes up again.
“For the immediate future, we’d have a system where there’s a patchwork of rights,” said Stephanie Toti, senior counsel for the Center for Reproductive Rights, who is arguing the case on behalf of Texas abortion providers.