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 That the high court is taking up a case about such arcane
regulations reflects the success of a legal strategy that abortion
opponents embraced about a decade ago and initially caught some
abortion-rights advocates off guard.
"It took a while to see the impact" of state laws imposing
regulations on abortion providers, said Elizabeth Nash, a policy
analyst at the Guttmacher Institute, which tracks abortion policy
and supports abortion rights.
One of the two Texas regulations before the court requires doctors
who provide abortions to have "admitting privileges" at a local
hospital so they can treat patients needing surgery or other
critical care.
Another regulation being challenged before the Supreme Court forces
clinics to have costly, hospital-grade facilities, mandating a long
list of building standards. Unlike the "admitting privileges"
requirement, it has yet to go into effect.
Since the Republican-backed law was passed in 2013, many Texas
clinics have closed.
Abortion providers challenging the Texas law say the Supreme Court
should declare it unconstitutional. They contend the law was
intended to shutter clinics and make it harder for women to end a
pregnancy.
Texas officials and national abortion opponents counter that the
regulations were necessary to protect maternal health.
Ten other states also require doctors who perform abortions to have
hospital admitting privileges. Many of those laws are on hold
because of litigation. Abortion opponents in Missouri secured
passage in 2005 of the first law requiring admitting privileges at a
hospital within 30 miles (48 km).
The Supreme Court found a constitutional right to end a pregnancy in
the landmark 1973 case Roe v. Wade.
In the decades immediately afterward, the legal strategy of abortion
opponents focused on trying to ban abortion outright or impose
mandates on women such as waiting periods or parental or spousal
consent. But federal courts struck down the most restrictive of
those laws, and the Roe v. Wade ruling was upheld.
Responding to those setbacks, some anti-abortion leaders, such as
those at the Washington-based National Right to Life Committee,
urged state activists to shift to subtler tactics.
Key advocates on both sides of the debate point to a 2007 strategy
memo by James Bopp, general counsel to the National Right to Life
Committee.
Addressing what Bopp deemed "how best to advance the pro-life
cause," the memo urged abortion opponents to stop proposing abortion
bans that federal judges were rejecting, and instead push clinic
regulations and other "incremental" efforts that Bopp said "often
shut down clinics."
Another national anti-abortion group, Americans United for Life,
began using the 2005 Missouri law as model legislation for state
activists targeting abortion clinics.
In 2010 elections, abortion opponents received a boost when
Republicans made historic gains in state legislatures and ramped up
proposals targeting abortion providers.
In 2011 and 2012, Kansas, Arizona, Mississippi and Tennessee passed
admitting-privileges laws.
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'OUT OF NOWHERE'
"It was just out of nowhere," said Deborah Walsh, then overseeing a
Knoxville, Tennessee, abortion clinic that ended up closing because
its doctors lacked the requisite hospital affiliation.
Walsh said she wanted to sue Tennessee but after talking to national
abortion-rights lawyers, the consensus was that litigation
priorities were elsewhere.
The New York-based Center for Reproductive Rights sued Mississippi
in 2012. The group's lawyers said only one clinic existed in
Mississippi and the admitting-privileges rule threatened to shut it
down. They succeeded in blocking the rule's enforcement in a lawsuit
that is still ongoing.
The Guttmacher Institute's Nash said if abortion rights supporters
had mounted a stronger legal attack against earlier regulations, it
might have blunted the momentum that led to the 2013 Texas law.
Lawyers for abortion providers said they picked their shots and sued
in places where regulations would most curtail abortion
availability.
"We have brought cases where the impact has been most extreme," said
Julie Rikelman, litigation director at the Center for Reproductive
Rights, representing Whole Woman's Health, suing Texas in the
Supreme Court case.
In addition to Texas, five other states passed admitting privileges
laws in 2013 and 2014.
Conditions for such privileges vary. Some hospitals require doctors
to live within a certain distance of the hospital and admit a
minimum number of patients per month. Some hospitals do not offer
privileges to doctors who do abortions.
At the Supreme Court, the Feb. 13 death of conservative Justice
Antonin Scalia could lead to a tie vote, with its four liberals and
four conservatives on opposite sides. If the justices split 4-4, no
national legal precedent would be set but the lower court decision
upholding the Texas law would stand.
That would leave the Texas law intact and could embolden
legislatures in other states with strong opposition to abortion to
enact similar measures.
It also is possible that conservative Justice Anthony Kennedy, who
has voted for the basic right to abortion but endorsed many
restrictions, would join the court's four liberals to strike down
the Texas law.
A ruling in the case is due by the end of June. The Supreme Court's
last major abortion ruling was in 2007 when it upheld a federal law
banning a late-term abortion procedure.
(Reporting by Joan Biskupic; Additional reporting by Jilian Mincer;
Editing by Amy Stevens and Will Dunham)
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