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Supreme Court Expected To Rule On Abortion Case

Jun 26, 2016
Originally published on June 29, 2016 8:10 am
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RAY SUAREZ, HOST:

The Supreme Court is expected to wrap up its term tomorrow with a decision on a politically controversial and divisive issue, abortion. Some are calling the case - Whole Woman's Health v. Hellerstedt - the most important abortion case in a generation. At issue is a Texas law that imposes major restrictions on abortion clinics in that state.

Proponents say the regulations are in place to protect women's health. Opponents say it's just another attempt to limit legal access to abortion in Texas. The court's decision could affect access to abortions for millions of women in several states, and Texas clinics say a decision against them could force most of the remaining abortion clinics in Texas to close.

I asked NPR legal affairs correspondent Nina Totenberg what's at stake in the case, which was argued in March.

NINA TOTENBERG, BYLINE: What's at stake are all of these restrictions, not just in Texas, but in a couple of dozen other states where many of them are on hold and others are waiting to be introduced. Basically, the Texas law requires all abortions to be done in ambulatory surgical centers that are kind of mini hospitals with wide corridors, large operating rooms, advanced HVAC systems.

And the abortion rights groups say - the clinics say that they simply can't afford to do that, that it's not necessary for other outpatient surgical procedures like a colonoscopy. And the second provision requires any doctor performing an abortion to have admitting privileges at a hospital within 30 miles of the clinic.

And again, the clinics say, look, we have doctors who fly in for a day to do this stuff. They're - they don't have privileges. And if something goes wrong there are hospitalists, there are ER teams who could take care of people at the hospital. We don't need to do that.

SUAREZ: You mentioned earlier that a lot of states have passed similar laws. Depending on how this decision is rendered, will this be a green light for them or a signal that they simply can't?

TOTENBERG: It could be a signal that they simply can't, at least in certain regards, or a green light. And that's why it's so important. You know, even in Texas where this has gone on for some time, as it is, more than half the state has no clinics in it.

Something like 900,000 women of childbearing age would have to drive 100 miles or more to get an abortion. The state legislature said it's necessary to protect the safety of women. I have to say that the medical profession, not just nationally, but locally in Texas, says that's just not true.

SUAREZ: Abortion cases are often closely watched, decided by slim majorities. Did the justices tip their hands at all when the case was argued? With the late Justice Scalia not voting, could it easily end in a 4-4 tie?

TOTENBERG: Well, it could but the court announced two 4-4 ties on Thursday. But most of us who cover the court think it seems likely that they have a decision in the abortion case, that it would have been announced on Thursday as a third 4-4 tie.

The swing vote here is Justice Kennedy. If he votes with the liberal justices then it would be 5-3. Now, it might be a very narrow opinion, but if I were a betting person that's the direction I would bet it's going in. And you can all hold me accountable if I'm wrong.

SUAREZ: We're approaching the end of the term, Nina, with an eight-member court and thus the prospect of it staying that way for a while still to come. How has the lack of a ninth justice changed the court's work?

TOTENBERG: Unless the abortion case is in fact a 4-4 tie, we'll have at least four - that we know of - 4-4 ties - some of them in very big cases in which the law of the land is undecided, and this can't go on forever. If Merrick Garland isn't confirmed in a lame-duck session, let's say, then we're talking about next year for whomever the next president chooses to fill that seat. And in all likelihood, we would have the entire next term with an empty seat again on the court.

SUAREZ: That's NPR's legal affairs correspondent Nina Totenberg. Thanks a lot, Nina.

TOTENBERG: Thanks, Ray. Transcript provided by NPR, Copyright NPR.