The Supreme Court on Monday declined for now to jump back into the long-running legal fight over abortion, but a flood of new state restrictions has increased the chances that the issue soon will be back before the justices.
The court stepped back from a dispute over a now-nullified Oklahoma law to limit drug-induced abortions. But a new filing asks the justices to block new Texas restrictions that have dramatically reduced the availability of abortions in Texas.
Oklahoma also is challenging its state high court’s rejection of a law mandating an ultrasound exam before an abortion can be performed and Arizona, backed by 16 other states, wants the justices to let it enforce a ban on abortions after 20 weeks of pregnancy, except for medical emergencies.
On both sides of the issue, people say it is only a matter of time before the court steps in to indicate how far states may go in regulating abortion without crossing the line the court first set out in the 1973 Roe v. Wade decision that announced a woman’s right to an abortion and modified in 1992 in Planned Parenthood v. Casey.
The Supreme Court’s last abortion case was in 2007, when a bitterly divided court upheld a federal law that banned a procedure its opponents call partial-birth abortion. It was the first time the court upheld a nationwide ban on a particular method of abortion and the majority opinion that Justice Anthony Kennedy wrote for his four conservative colleagues suggested that the court might be open to additional limits on abortion.
The ensuing years have given rise to a wealth of state laws that outlaw abortions after 20 weeks of pregnancy, set limits on the use of drug-induced abortions, mandate ultrasound exams and counseling and require that doctors who perform abortions in clinics practice at nearby hospitals.
“I think what we’re seeing is that Americans generally, according to opinion polls and the actions of their legislatures, are unhappy with federal control of abortion that we’ve had since Roe v. Wade,” said Casey Mattox, senior counsel at the anti-abortion Alliance Defending Freedom.
Looking at the same trend, Nancy Northup, president and chief executive officer of the Center for Reproductive Rights, said abortion rights groups are pushing back hard against the state laws.
“The reality is, we are seeing an onslaught of restrictions like never before,” Northup said.
Her group led the challenge to the Oklahoma law on medication abortions. In 2012, the Oklahoma Supreme Court struck down the law that requires doctors to administer the drugs in accordance with U.S. Food and Drug Administration protocol and prohibits widely prescribed off-label uses.
The justices said in June they would review the Oklahoma ruling, but first wanted the state court to clarify whether the law at issue limits drug-induced abortions or effectively bans them altogether. The latter, the Oklahoma court said last week.
That response led the justices to change their mind and dismiss the case on Monday. An Oklahoma lawmaker already has said he will introduce new legislation that takes the Oklahoma court ruling into account.
Just as the court was dismissing the Oklahoma case, Planned Parenthood was asking the court to block the provision of a new Texas law requiring doctors who perform abortions in clinics to have admitting privileges at a nearby hospital.
The group said more than a third of the clinics in Texas have been forced to stop providing abortions since a court order allowed the new restrictions to take effect Friday.
Planned Parenthood said that the 5th U.S. Circuit Court of Appeals went too far in overruling a trial judge who blocked the law’s provision requiring doctors who perform abortions in clinics to have admitting privileges at a nearby hospital.
The filing was addressed to Justice Antonin Scalia, who oversees emergency matters from Texas. Scalia has asked Texas to respond by Nov. 12, meaning that the provision will remain in effect at least until then.
The appeals court ruled three days after a trial judge said the provision serves no medical purpose.
The three-judge appellate panel acknowledged that the provision “may increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions.” However, the panel said that the Supreme Court has held that having “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law that serves a valid purpose, “one not designed to strike at the right itself.”
The appellate panel’s ruling is temporary until it can hold a complete hearing, likely in January.
The restrictions are among the toughest in the nation and gained notoriety when Democratic state Sen. Wendy Davis launched a nearly 13-hour filibuster against them in June. Davis has since launched her own gubernatorial campaign and could face Republican Attorney General Greg Abbott, who is defending the law, in the November 2014 election. Republican Gov. Rick Perry has said he will not seek another term.