US Supreme Court
The U.S. Supreme Court

On March 2, the U.S. Supreme Court heard arguments in a case called Whole Women’s Health v. Hellerstedt. The case is a challenge to a Texas law that placed complicated new restrictions on the operation of legal abortion clinics.

At issue is whether the restrictions (which require abortion providers to have hospital admitting privileges within 30 miles of their operations and meet the same building and equipment standards imposed upon hospitals) are constitutional in light of previous Supreme Court cases such as Gonzalez v. Carhart and Planned Parenthood v. Casey

Opponents of the Texas law argue that such restrictions are not medically necessary to ensure the safety of abortion patients and are actually a scheme to force clinics to shut down without needing to ban them outright. Indeed, since the law’s passing in 2013, more than half of Texas’ abortion clinics in operation at the time have closed. To opponents, that fact proves the Texas law places an undue burden on the exercise of a woman’s right to make her own medical decisions, something the Supreme Court has long said states cannot do.

Defenders of the law, representing the state health department, say opponents can’t prove all the clinics that closed did so because of the new law, and even if that was the case, the law is necessary to protect the health of abortion patients and ensure that they receive a high level of treatment.

The Fifth Circuit, which hears appeals from federal courts in Texas as well as Louisiana and Mississippi, ruled mostly in favor of the Texas law. Judges Edward Prado, Jennifer Elrod, and Catharina Haynes – all George W. Bush appointees – held that the restrictions, though extensive, were not intended to close existing licensed abortion clinics and were therefore constitutional.

Specifically, the Fifth Circuit concluded that it was wrong for the lower court to require Texas to prove that the new restrictions improved the health outcomes of patients because, under existing law, state legislatures have wide discretion to pass laws despite “medical and scientific uncertainty.” And not a large enough percentage of women in Texas would be forced to travel long distances to obtain an abortion to justify striking down the law, even if the law was in fact the reason for the closure of half the clinics in the state.

Before the death of Justice Antonin Scalia in February, pro-choice organizations were wary that the Supreme Court would affirm the Fifth Circuit’s decision by a 5-4 vote. In previous abortion cases, Justice Anthony Kennedy – who last year wrote the opinion striking down state bans on same-sex marriage – has sided with his four conservative colleagues to allow tighter restrictions on the procedure. A 5-4 ruling in the current case would apply to the entire country, not just Texas.

But with Justice Scalia dead and his seat vacant on the Court, it is more likely that the decision will be split 4-4, meaning the Fifth Circuit decision would be affirmed, but whatever opinion or opinions the Supreme Court publishes won’t control other cases outside of that circuit. The Texas abortion restrictions will survive but states elsewhere may still face viable legal challenges.

Kentucky State Capitol
Kentucky State Capitol

So what does this have to do with Kentucky? In both the House and Senate, conservative members of the Kentucky General Assembly have introduced bills to impose roughly the same restrictions on Kentucky abortion providers as those found in the Texas law. SB212 and HB492 would change the regulations of abortion clinics to more closely match those of hospitals, as well as require all providers to have admitting privileges at a hospital within 50 miles of the facility where each procedure is performed.

Strangely, or perhaps predictably, the Senate version of the bill was introduced in the Veterans, Military Affairs & Public Protection Committee, which includes no female members. They voted 9-1 to approve the bill on March 3. The House bill has a slightly tougher road ahead in that body’s Health and Welfare Committee, which includes Mary Lou Marzian, Susan Westrom and Joni Jenkins, all Democrats.

Should the bills pass their respective houses and be signed into law by avowedly anti-abortion Gov. Matt Bevin, the new restrictions could face the same constitutional challenge faced by the Texas law before it. But the current makeup of the Supreme Court makes it unclear who would win.

Through amicus briefs, the pro-choice opponents of the Texas law are trying to convince Justice Kennedy to side with the more liberal Justices Breyer, Ginsburg, Sotomayor, and Kagan in deciding this case. The amicus filers have invoked the same appeals to the sanctity of personal autonomy that guided Kennedy’s pen in the Obergefell v. Hodges opinion striking down same-sex marriage bans. In that decision, Kennedy cited heavily to past reproductive freedom cases such as Griswold v. Connecticut and Eisenstadt v. Baird, in which the Supreme Court upheld a personal right to make reproductive choices free of unjustified government interference.

Nevertheless, Kennedy has been willing to allow restrictions on so-called “partial-birth” abortions and also on requirements that patients wait at least 24 hours between an initial doctor consultation and the actual procedure.

This time, however, there is a strong argument that medically unnecessary hospital privilege requirements as well as cost-prohibitive equipment demands do create the kind of undue burden that the Supreme Court has in the past prohibited.

And in states like Kentucky, where there are almost no abortion providers at all, such an argument could be even stronger compared to Texas, which still has nearly 20.

It will all depend on how the Court weighs the very real, negative effects on women’s autonomy and independence that these restrictions create against the wide discretion that states enjoy in matters of health and medicine, even when their obviously religious motives are bolstered by ignorance about the frequency and risk of procedures that remain far safer than routine dental extractions.

Hopefully, the Supreme Court will apply existing precedent to err on the side of autonomy, rather than theocracy. A decision will likely be handed down in late June.

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Joe Dunman
Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.