AUDIE CORNISH, HOST:
And I'm Audie Cornish in Washington, where this was part of the scene on the sidewalk outside of the U.S. Supreme Court.
(SOUNDBITE OF ARCHIVED RECORDING)
UNIDENTIFIED WOMAN: We want abortion access, and when do we want it?
UNIDENTIFIED CROWD: (Chanting) Now.
UNIDENTIFIED WOMAN: Abortion access...
CORNISH: Abortion rights supporters and opponents held demonstrations as the justices heard arguments in the most important abortion case in a generation.
KELLY MCEVERS, HOST:
At issue are two major restrictions enacted by Texas. The law requires that abortions be done in ambulatory surgical centers - mini hospitals with wide corridors, large operating rooms and advanced air-conditioning systems. A second provision requires that doctors performing abortions must have admitting privileges at a nearby hospital. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: With one seat on the court vacant, Justice Anthony Kennedy once again seems to hold the key to the outcome. In 1992, Kennedy signed onto a Supreme Court decision declaring that while states may regulate abortions, they may not impose what the court called an undue burden on a woman's right to terminate a pregnancy. But he's only once viewed an abortion regulation as an undue burden. In the aftermath of the new Texas law, half the abortion clinics in the state have closed, with that number expected to be cut in half again if the Supreme Court upholds the Texas law. Whole sections of the huge state have no clinic. Women have to travel hundreds of miles to get an abortion, and the waiting times for appointments have increased by weeks, often pushing women into the second trimester.
For much of today's argument, Justice Kennedy seemed to be looking for a way out. Is the new law really responsible for shuttering 20 clinics? Could the court send the case back to the lower courts from further fact-finding? The problem was, as the court's female justices pointed out over and over again, there's already been a lot of fact-finding in the case. The argument opened with Chief Justice Roberts and Justice Alito, two justices deemed hostile to abortion rights, repeatedly questioning whether the clinic closures really were the result of the law's restrictions.
The three women justices jumped in with ferocity. Justice Kagan - in the two-week period when the restrictions went into effect, over a dozen facilities shut their doors. And then, when the regulations were temporarily blocked by the courts, they reopened. It's almost like the perfect controlled experiment as to the effect of the law.
Solicitor General Donald Verrilli, arguing on behalf of the Obama administration, told the justices that every major medical group, including the American Medical Association, has told the court that the restrictions are groundless and actually operate, in practice, to increase health risks for women, and not decrease them. Verrilli maintained that the existing clinics cannot fulfill the need. He noted that before the law took effect, there were 65,000 to 70,000 abortions in the state each year, but those clinics that remain open will only be able to provide 14,000, or about 20 percent of the previous total. If there's still a right to abortion, Verrilli said, this law cannot stand. It is the definition of an undue burden.
Next up was Texas Solicitor General Scott Keller defending the law. He took quite a pounding from the court's liberals. Justice Kagan - 900,000 women of childbearing age live more than a hundred miles from a clinic, and three-quarters of a million live more than 250 miles away. Justice Breyer noted that with the number of clinics significantly reduced, women who face long trips and a greater expense in order to get an abortion will engage in dangerous, self-induced abortions, and you will find, as he put it, many more women dying. Justice Ginsburg noted that, under the Texas law, not only do surgical abortions have to be done in mini hospitals, so, too, do medical abortions, in which the patient takes two pills. What's the benefit of that, she asked.
Justice Kennedy chimed in to note that while drug-induced abortions are increasing nationally, the Texas law has had the opposite effect, increasing surgical abortions instead. Is that within the state's authority to do, he asked? Yes, replied Keller, because medical abortions have more complications. Even if that's so, replied Ginsburg, those complications arise later, when the patient is home and often hundreds of miles from the clinic. Justice Breyer - the risk from abortion is miniscule compared to other outpatient procedures that are not similarly regulated. Colonoscopies, for instance, pose 28 times the risk. Keller replied that all the state needs to justify its abortion regulations is a legislative purpose. Justice Kagan, incredulous - can a legislature say anything? Can it require abortion clinics to meet the same standards as the best hospitals in the country, even though those standards are not applied to any other outpatient procedure? Answer - yes.
When all is said and done, though, the case boils down to Justice Kennedy. If he votes to uphold the Texas law, it would almost certainly mean a 4-4 tie. The Texas law would remain in effect, at least until a nine- member court decides the issue a year or more from now. If he votes the other way, the law would be struck down. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
