Constitution Daily

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Texas abortion law case seems headed toward Supreme Court test

March 28, 2014 by NCC Staff


A federal appeals court ruling on Thursday upheld abortion laws in Texas and seemingly sets up a very important Supreme Court test at some point.


Greg Abbott. Image: Gage Skidmore

The 5th U.S. Circuit Court of Appeals said restrictions were permissible on doctors who performed abortions based on their proximity of their practice to an admitting hospital and on the use of drugs to induce abortion in certain cases.


The 7th Circuit Court came to an opposite conclusion about similar regulations, setting up a split in the lower courts. Similar cases are underway in three other states.


Also, last year the Supreme Court’s four liberal-leaning Justices signaled they wanted to hear the case, regardless of the 5th Circuit appeals court ruling in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott.


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“The underlying legal question—whether the new Texas statute is constitutional—is a difficult question. It is a question, I believe, that at least four members of this Court will wish to consider irrespective of the Fifth Circuit’s ultimate decision,” Justice Stephen Breyer said last November, when the Court didn’t block the Texas law from going into effect, in a 5-4 ruling.


The high-profile case in Texas is also at center stage as the state tries to select a new governor. Greg Abbott, the state attorney general, is running as a Republican candidate, while Wendy Davis (who gained national attention trying to block the law) is a Democratic candidate.


A lower court first ruled that parts of the law were unconstitutional and they had no medical purpose, but the 5th Circuit allowed some rules to remain in effect. The appeals court said the law “on its face does not impose an undue burden on the life and health of a woman.”


The Supreme Court is considering two abortion-related cases in its current term, which ends in late June.


This week, the Justices heard the Hobby Lobby-Conestoga Wood case, which challenges a mandate under the Affordable Care Act for certain for-profit corporations, with religious beliefs, to provide contraceptive coverage to employees, or pay a fine. The companies says the insurance coverage includes abortion-inducing contraceptives.


The second case is McCullen v. Coakley and it challenges Massachusetts’ 35-foot buffer zone around abortion clinics, which is designed to keep demonstrators away from patients.


If the Court were to accept the Texas case, or a case dealing with similar issues, a ruling could test the limits of its landmark 1992 ruling in Planned Parenthood v. Casey.


In that bitterly contested decision, the split court, in a 5-4 vote, put some limits on the 1973 Roe v. Wade decision, while managing to uphold Roe.


Three of the current nine Justices were involved in the Planned Parenthood decision, with Anthony Kennedy in the majority, and Antonin Scalia and Clarence Thomas dissenting.


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