Constitution Daily

Smart conversation from the National Constitution Center

Broader meaning of the Supreme Court’s abortion order

November 20, 2013 by Lyle Denniston


The Supreme Court’s order yesterday allowing Texas to continue to enforce a law that has led to the closing of many abortion clinics in Texas was a cautious step, in the view of some of the Justices.  But it may well have a broader meaning as the Court begins to confront a new wave of state laws restricting the right of women to end pregnancies at least in the early weeks.


350px-Supreme_Court_US_2010In the background of the court’s action is a fundamental difference in the way judges can look at laws limiting abortion rights.  The Court has not spelled out fully how to tell on which side of the constitutional line a restriction stands.


If such a law is seen as a flat ban on the right to an abortion for a “substantial number” of women, up through about the 24th week of pregnancy, then it is likely to be struck down under the authority of past Supreme Court rulings.  The court has never abandoned the constitutional line that a women has a right to end a pregnancy prior to the point at which a doctor finds the fetus to be “viable” – that is, capable of living outside the womb.


But if a restriction is seen as a regulation of the abortion right, to fulfill some official policy or interest of the state government other than moral hostility to abortion, then it has a much greater chance of withstanding a constitutional challenge.


It seemed obvious that a majority of the Supreme Court was comfortable on Tuesday with the view of a federal appeals court that the Texas law at issue is a form of regulation, not a ban.  The law at issue makes it a crime, punishable by a fine up to $4,000, for a doctor to perform an abortion unless that doctor has professional privileges to admit an abortion patient to a full-service hospital within 30 miles of the clinic.


The appeals court, overturning an order by a federal judge in Austin, allowed that provision to go into effect after finding that it is likely to survive a constitutional challenge when a final decision is made on that issue.  It said that the state of Texas “has legitimate concern for maintaining high standards of professional conduct in the practice of medicine.”  That is a statement that justifies an abortion restriction as a regulation, not as a ban on the procedure.


While the appeals court did concede that the privileges requirement will be harmful for doctors and clinics who seek to provide access to abortion for Texas women, it said that was not enough to overcome the likelihood that this form of regulation will be upheld in the final analysis.


The doctors and clinics who took this case to the Supreme Court, to try to get the privileges requirement put on hold while courts review its validity, had contended that this provision amounts to an effective ban on abortion for perhaps 20,000 women in the state, because it will have the effect – in fact, is already having the effect – of forcing the closing of about one-third of all clinics in Texas, mostly in rural areas.


The five Justices who were in the majority to allow the law to remain in effect, while the appeals court moves ahead to decide its constitutionality, were unwilling at this point to second-guess the appeals court’s view of the law’s effect in Texas.


It is important to stress, though, that this was only a temporary action by those five Justices, and did not amount to a definitive ruling on the Texas law.  In fact, there was not even an opinion speaking for the majority: the court issued a one-sentence order refusing to prevent enforcement of the law, and that order was unsigned.  Three Justices – Antonin Scalia, joined by Samuel A. Alito, Jr., and Clarence Thomas – wrote separately to say why they thought “the Court” – that is, the majority of five – was right in what it did.


Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy were on record as having taken part in the action, but they did not write anything to explain their views.  Still, they at least appeared to be unwilling to interfere even temporarily with enforcement of the law – and, one may speculate, because they saw it as a regulation, not as a ban.


Justice Kennedy is the member of the Court who has gone the furthest to draw a distinction between abortion regulation – which he has been increasingly willing to allow – and any law that would accomplish a flat ban before the point of fetal viability – which he has not supported.


The dissenters on Tuesday – Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – strongly hinted that they viewed the Texas law as its challengers had portrayed it, a measure that closes clinics and puts abortion out of the reach of a substantial number of pregnant Texas women.


The court’s next opportunity to deal with the kind of new state restrictions that are being passed probably will come when they take up an Arizona case, involving a 2012 state law that forbids abortions at twenty weeks or later – that is, some weeks before fetal viability.  The state is defending this measure on the premise that it is a regulation, not a ban, on abortions that is designed to serve the state’s interest in protecting fetuses from feeling pain.  Its appeal in the case is intended to get the Supreme Court to enlarge the notion of regulation as opposed to prohibition.   That case may be ready for the Justices’ first look in January.


Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.


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