THE US SUPREME Court appeared sharply divided yesterday as it heard its most important abortion case in a generation, with far-reaching implications for women’s access to the procedure, and the White House race.
The eight justices, evenly split between conservatives and liberals, showed little common ground in 90 minutes of heated oral arguments over whether a Texas law aims to protect women’s health or restrict access to abortions.
With the death of Antonin Scalia, the court’s leading conservative voice whose absence was marked with black crepe draped over his chair and part of the bench, Texas is unlikely to get any more than four votes.
All eyes are therefore on Justice Anthony Kennedy whose swing vote will determine whether the court splits four against four, meaning the Texas law stays in place, or strikes it down if he sides with the liberals.
The case before the justices challenges a 2013 Texas law which imposes restrictions on abortion clinics – measures activists say have forced more than half of the state’s 41 centres to close.
A decision is not expected until June on the issue, which perhaps more than any other has gnawed at the social, religious and political fabric of American life.
‘Everybody is hoping for Kennedy’
In a sign of the passions aroused by the case, pro and anti-abortion protesters camped outside the court for up to two days for a chance to attend the hearing.
Hundreds of people massed at the foot of the Supreme Court steps as the hearing got underway, with pro-choice campaigners chanting “stop the sham!” and “abortion access? Now!”
Farah Diaz-Tello, 34, travelled from Texas in the name of a pro-choice group called National Advocates for Pregnant Women.
“It is important for me, as a Texan woman myself, that my sister, my friends have access to abortion services that they need,” she told AFP.
Everybody is hoping for Kennedy.
The justice helped draft a ruling 24 years ago that struck down state restrictions imposing an “undue burden” on a women seeking an abortion.
At yesterday’s hearing, Kennedy suggested the state’s interests should be balanced against the impact on women seeking an abortion, which could spell trouble for the Texas law.
But both he and conservative Justice Samuel Alito also highlighted a lack of evidence linking the law to clinic closures, with Kennedy suggesting the case be sent back to lower courts so more evidence can be presented.
Ten clinics for the whole of Texas?
Under the Texas legislation, doctors who perform abortions are required to have admitting privileges at nearby hospitals and their clinics to meet the standards of an ambulatory surgical centre.
Activists warn that if it is upheld, that would leave just 10 abortion clinics in the second-largest US state, home to an estimated 5.4 million women of child-bearing age.
They are also sounding the alarm over moves to enact similar laws in other states, which would be bolstered by a Supreme Court ruling in Texas’s favour.
Hundreds of thousands of Texan women are having or will have to seek abortion services far from their homes, and face a weeks-long wait, while clinics struggle to meet the stringent requirements and costly upgrades.
The three women justices on the bench launched into a series of rapid-fire questions aimed at Texas Attorney General Scott Keller.
Justice Elena Kagan noted that the number of women living 150 to 200 miles from a clinic will increase dramatically if the law stands, from about 10,000 to 250,000.
Keller suggested the true number would be lower because some live close to New Mexico – and can access clinics across the state border.
Alright for New Mexico?
But Justice Ruth Bader Ginsburg seized on the fact New Mexico does not impose the same requirements on abortion facilities as Texas.
“If it’s alright for women living in New Mexico, why isn’t it alright for women in Texas?” she asked.
Justice Sonia Sotomayor took issue with the prohibitive expense for medical practitioners of conforming with the rules – asking provocatively:
Why should a doctor have to become an indentured slave just so a woman can have her right to choose?
Keller stressed that abortion procedures often give rise to complications.
But Ginsburg shot down that claim and questioned the need for surgical facilities in clinics by noting that many abortions simply involve taking two pills and that any complications would likely arise long after, at the woman’s home.
Backers of the Texas law say it aims to protect women’s health in a state that long went without proper regulations for abortion clinics – opening the door for criminal malpractice.
But critics say that is a pretext for a thinly veiled Republican attempt to overturn the Supreme Court’s landmark 1973 Roe vs Wade ruling, which legalised abortion.
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