In the past two years, anti-abortion groups have seeded state laws with abortion restrictions. Challengers to court rulings for and against those laws now are knocking on the doors of the U.S. Supreme Court.
The justices on Nov. 4 dismissed Cline v. Oklahoma Coalition for Reproductive Justice, Oklahoma’s attempt to resurrect its limits on medical abortions. However, litigators on opposite sides of the abortion controversy agree the Cline case is unlikely to be the last time the high court confronts that issue.
On the same day as the dismissal of Oklahoma’s petition, an emergency application was filed with Justice Antonin Scalia in Planned Parenthood of Greater Texas v. Abbott, a case challenging that state’s law requiring abortion clinic physicians to have admitting privileges at a hospital within 30 miles of the clinic.
As early as this week, the high court may say whether it will hear another Oklahoma abortion case, Pruitt v. Nova Health Systems, the state’s defense of the Oklahoma Ultrasound Act, which also was struck down by that state’s highest court.
Before the year ends, the justices may take their first look at Horne v. Isaacson, a petition by Arizona challenging the invalidation of its law banning abortions after 20 weeks.
And, although cast as a religion issue, lawsuits by for-profit business owners objecting to health insurance coverage of contraception are seen as another front in the abortion wars. The justices have three petitions on that issue and are highly likely to take one this term.
Litigation at the Supreme Court and in the lower state and federal courts “seems to be picking up,” said Brigitte Amiri, senior staff attorney with the ACLU’s Reproductive Freedom Project. And that is demanding a high level of coordination of legal resources on both sides.
Three issues dominate most of the litigation: requirements for hospital admitting privileges, 20-week abortion bans and medication abortions. And two of the three — admitting privileges and 20-week bans — are alive at the Supreme Court.
The three main defenders of abortion rights are the ACLU, Planned Parenthood Federation of America and the Center for Reproduc­tive Rights. Most recently lawyers from all three organizations formed a team to challenge Texas’ recent anti-abortion law in a suit that moved from federal trial to appeal to emergency application in the Supreme Court in just one month.
Besides its admitting-privilege requirement, the Texas law limits medical abortions and bans abortions after 20 weeks. A federal district judge blocked the admitting-privileges requirement, finding it did not improve patient outcomes and was a substantial obstacle to women obtaining abortions. However, the judge upheld the medical abortion limits “except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” The 20-week ban was not challenged.
The state immediately appealed to lift the injunction. Three days after the trial judge’s ruling, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit lifted the injunction. Four days later, opponents filed an emergency application to reinstate the injunction.
“A case like Texas shows why it’s so amazing to have multiple national organizations collaborating,” Amiri said. “It’s crucial to be able to act quickly to protect women’s health.”
In the emergency application, lead counsel Janet Crepps of the Center for Reproductive Rights tells the justices that “at least one-third of abortion providers in the state have ceased providing abortion services, and others, because only some of their doctors have privileges, have been forced to significantly reduce the number of patients they are able to see.”
The evidence before the district court showed this would prevent annually about 20,000 Texas women who would have otherwise had an abortion from accessing this health care service. The only two clinics in the Rio Grande Valley already have halted abortions. And there are reports of women around the state being re-routed from clinics near their homes to clinics three to four hours away and in other states.
“It’s devastating what’s happening on the ground in Texas,” Amiri said. “I’ve never seen anything like this.”
Scalia has given the state until Nov. 12 to respond to the emergency application. He may rule on it or refer it to the full court. Courts in Alabama, Mississippi, North Dakota and Wisconsin have blocked similar requirements for admitting privileges.
PRE VIABILITY ABORTIONS
While both sides wait, anti-abortion opponents are rallying around the petition supporting Arizona’s 20-week ban on abortions. The Ninth Circuit struck down the statute as a per se unconstitutional previability ban on abortions. The petition challenges the viability line established by Roe v. Wade and Planned Parenthood v. Casey. It claims that evidence of fetal pain and increased health risks to women after 20 weeks support the state ban.
The petition, whose counsel of record is John Eastman of Chapman University Dale E. Fowler School of Law, also is a coordinated effort, this time by some of the leading anti-abortion litigation groups, including Americans United for Life and Alliance Defending Freedom.
“I think that a dozen or more states have adopted the 20-week ban is very significant,” Eastman said. These state laws, he added, pick up language from Justice Anthony Kennedy’s opinion upholding the federal partial-birth abortion law in Gonzales v. Carhart. That language, he said, shows Kennedy backing away from what he wrote in Casey in upholding Roe. “I think the court is coming to grips with the internal contradictions of the whole line of Roe cases. Modern technology is forcing them. I’m very optimistic.”
So, too, is Casey Mattox, senior counsel with Alliance Defending Freedom. “What we’re seeing in Arizona and other places — and this goes through all these issues — is this issue of women’s health,” he said. “In previous cases, like Casey and Roe, you didn’t have situations where regulations were for the purpose of protecting women’s health.”
Mattox said he sums up all of his opponents’ challenges as: “Is there a constitutional right to a less safe abortion?”
But if not for the courts, unsafe abortions are exactly the result of the new state restrictions, the ACLU’s Amiri countered. “The district court in Texas found there is no need for admitting privileges in terms of patient safety,” she said. “No other outpatient service is required to have admitting privileges.”
And medical abortion limits, she said, force providers to use a protocol that is less safe and effective than medical evidence shows.
She hopes the Supreme Court will see that all of these laws are “a pretext for trying to force abortion providers to stop providing services to women.”
Marcia Coyle can be contacted at email@example.com.