U.S. Supreme Court, with 8 justices, to hear major abortion case
Court reaffirmed in early '90s that any regulation must not impose 'undue burden' on women
The U.S. Supreme Court takes up a major abortion case on Wednesday focusing on whether a Texas law that imposes strict regulations on abortion doctors and clinic buildings interferes with the constitutional right of a woman to end her pregnancy.
Eight justices will hear the case, not the usual nine. The Feb. 13 death of conservative Justice Antonin Scalia, who opposed abortion and backed restrictions on it, means the court no longer has five conservatives who might support more restrictive abortion regulations nationwide.
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The court potentially could split 4-4, with its four liberal justices opposing the abortion restrictions and its four conservatives backing the regulations, an action that would let stand a lower-court ruling that affirmed the Texas law but would not set a nationwide legal precedent.
The state contends the Republican-backed 2013 law protects women's health. The abortion providers who have challenged it assert that it is aimed at shutting down their clinics. The court has not ruled in an abortion case since 2007. The Texas case represents a high-stakes constitutional test for a strategic shift that abortion opponents have taken in recent years: to apply restrictive regulations to abortion doctors and facilities rather than try to ban the procedure outright.
Activists on both sides of the issue are planning demonstrations outside the courthouse.
There is a chance that conservative Justice Anthony Kennedy, who often casts the deciding vote in close cases, could join the liberals for a majority invalidating the law, or parts of it. Kennedy in past cases has supported a fundamental right to abortion but has endorsed restrictions including bans on a late-term abortion procedure.
The Texas law requires abortion doctors to have "admitting privileges" at a hospital within 48 kilometres of the clinic so they can treat patients needing surgery or other critical care.
Abortion providers say the provision already has prompted clinics to close because this formal hospital affiliation is difficult for clinic doctors to obtain.
The abortion providers also are challenging provisions in the law, not yet in effect, that mandate that clinics have costly, hospital-grade facilities.
The Supreme Court found a constitutional right to end a pregnancy in the landmark 1973 Roe v. Wade case. That decision was affirmed in 1992, as the justices ruled that any regulation must not impose an "undue burden" on women seeking an abortion.
At issue in Wednesday's case is whether the Texas requirements violate that principle by putting a "substantial obstacle" in the path of a woman before a fetus becomes viable.