FORT WORT — Behind double-locked doors, past a waiting room named for Michelle Obama, past walls painted in iconic purple hues called “Enigma” and “Intuitive,” the women who work in this abortion clinic are awaiting word from a man in Washington on whether a Texas law will force it to close.
Outside a suburban Starbucks miles away, an administrative assistant would like the same man, Judge Anthony M. Kennedy, to know that the law has already reduced the number of vendors in Texas so much that it has took out a payday loan and hopped on a plane to California. for abortion, she struggled to schedule in her home country.
And in the red granite Capitol in Austin, officials also look to Kennedy but want him to consider an alternative narrative on the law, which imposes new demands on doctors and requires even early abortions to be performed in surgical centers. .
These officials say the law was born out of concern for the health of women who choose the procedure and fits perfectly into the judicial compromise that Kennedy helped draft 24 years ago, reaffirming a woman’s right to abortion but recognizing the state’s interest in protecting potential life.
The Supreme Court’s most important abortion case in decades, heard on Wednesday, is presented to a one-person audience.
The unexpected death of Judge Antonin Scalia complicates the impact of the court’s eventual decision. But if the challengers manage to convince Kennedy that the Texas law goes too far, it would have national implications. States have passed more than 250 abortion restrictions in the past five years.
The case remains “monumental”, said Nancy Northup, president of the Center for Reproductive Rights (CRR), which is leading the legal challenge.
“These issues about these unnecessary health regulations that stop abortion or cut services need to be addressed. The cases are going to keep coming,” Northup said. been a huge devastation to abortion access in Texas and a threat elsewhere.”
Kennedy, 79, is hardly the savior that abortion rights supporters would like. In his nearly three decades in the field, he’s upheld every abortion restriction he’s ever considered, except one. The exception was a Pennsylvania law that required pregnant women to tell their husbands before seeking an abortion.
He is the remaining judge of the trio who, in 1992, set the current test for when abortion restrictions go too far. In Family planning c. Casey, Kennedy, and Justices Sandra Day O’Connor and David H. Souter upheld the basic framework of Roe vs. Wade, noting that a woman’s right to abortion is protected by the Constitution.
The opinion also recognized that states had an interest in protecting potential life, but that restrictions could not impose an “undue burden” on a woman’s right to an abortion prior to fetal viability.
“Judge Kennedy is the only path to victory for the clinics,” said Drexel University law professor David Cohen, who has written about the abortion rights movement. The math assumes the court’s four liberals — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — will agree with abortion providers that the Texas law is too onerous.
“The key is going to be whether Kennedy thinks it’s broader than any restriction he’s seen,” Cohen said.
Texas argues its 2013 law was a logical response to the shock indictment of Philadelphia abortion provider Kermit Gosnell, who was convicted that year of first-degree murder in the deaths of three born-alive infants and of manslaughter in the death of a woman undergoing the procedure in her sub-
The state restrictions were intended to ensure the safety of women undergoing the procedure, Texas told the Supreme Court, and aligned with Kennedy’s view in Casey that “states may regulate abortion, so long as the regulations have a rational basis and do not have the purpose or effect of creating a substantial barrier to access to abortion”.
One of the disputed Texas provisions requires abortion clinics to meet standards for outpatient surgery centers. It was one of the recommendations of the grand jury that indicted Gosnell.
The other provision in question obliges doctors to obtain admitting privileges in local hospitals, which would enable them to treat patients there in the event of an emergency. Proponents call it another common-sense measure to ensure continuity of care for a woman who develops complications.
Five other states, including Virginia, require first-trimester abortions to be performed in the hospital setting required by Texas. At least nine have the same type of admission privileges requirement, according to the CRR. Other states have different versions of both.
The number of clinics in Texas has fallen from about 40 to 19 since parts of the law went into effect. If the providers lose in the Supreme Court, they say the number will drop to 10 for a population of 5.4 million women of childbearing age.
At Whole Woman’s Health of Fort Worth, director of clinic services Marva Sadler said her clinic will be closing. There is not enough space to turn the clinic into a surgical center, and the cost is prohibitive.
Center rooms are named after strong women, she said, including Michelle Obama, Rosa Parks, Georgia O’Keefe and Rosie the Riveter. The overhead lights are rarely on. “I don’t want anyone to feel like they’re in the spotlight,” Sadler said.
In the recovery room, women sit in recliners and drink special tea prepared by an Austin herbalist. Music is played, in part to drown out the cries of protesters a few yards away, who are paying rent on neighboring property so they can demonstrate.
Although the three doctors who work at her clinic have admitting privileges at a nearby hospital, these are not necessary, she said. A hospital would accept any woman with a problem.
And the American Medical Association, which filed a brief in support of the clinics, agrees that both requirements — on admission privileges and surgical center facilities — are unnecessary.
“Laws that regulate abortion should be evidence-based and designed to improve women’s health,” the AMA’s brief said. “The impugned provisions of HB 2 are neither.”
“It’s not about the woman; this is an attack on women,” Sadler said. “Our objections weren’t heard because they didn’t matter from the start, in my opinion. The agenda was set. »
Texas featured medical officials who said the requirements would benefit women. A trial judge found the arguments unconvincing and struck down those provisions of the law. But a panel of the United States Court of Appeals for the 5th Circuit reversed that ruling and said courts need not consider a legislature’s justification for abortion laws as long as that justification had a reasonable basis.
Nine states have joined Texas in asking the court to allow them to regulate health standards for abortion providers, just like other procedures.
“There is nothing exceptional about the practice of abortion that should lead the court to endorse a constitutional right to the unsafe practice of medicine, which physicians do not enjoy in any other context,” the brief states. tabled by the governors.
And the National Right to Life Committee urges the Supreme Court not to take on the role of a “national medical commission”.
But proponents of abortion rights say the court has an obligation to decide whether the regulation is defensible or simply a pretext to make it harder for women to access abortions.
The common opinion in Casey argues that an undue burden could include “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion”.
Texas says that even with the reduced number of clinics, “more than 90 percent of Texas women of childbearing age will live within 150 miles of an open abortion clinic.”
Former Texas Solicitor General Jonathan Mitchell filed a supporting brief saying the providers failed to meet their burden of proving that it was HB 2 that caused the clinics to close. Their memoir states that they “produced no evidence that a patient in Texas was unable to obtain an abortion after the Admitting Privileges Act went into effect on October 31, 2013. – or that a patient encountered “substantial obstacles” in doing so.
He calls “strange” a post-trial study in the district court that called for long wait times for women trying to get abortions and a claim that women were self-inducing or were having an abortion later in their pregnancy, when other Texas restrictions apply. .
But Candice Russell, administrative assistant at the Dallas-Fort Worth Metroplex, said the problem was real for her.
Her birth control device, an IUD, failed and she was quite advanced when she realized she was pregnant, she said in an interview. The first date she was able to get was in two and a half weeks, she said. She feared that if she missed him because of work, it would be too late.
So she left for California, where her ex-boyfriend had just moved, and quickly had an abortion. She said she was lucky.
“I took out a payday loan, and it got me into a bit of debt,” Russell said. “But I think of the women in the Panhandle or the [Rio Grande] Valley. Can they get on a plane, fly 1,500 miles and have an abortion? No.”