The justices heard lawyers in a landmark abortion case on Friday explore deep questions: Does the Constitution compel states to provide abortion services to women in emergency situations? Does the Supreme Court’s 1973 ruling in Roe v. Wade give a clear directive to the country that making abortion a legal right for every woman in America is a constitutional right? And, most specifically, does a woman’s constitutional right to an abortion in emergency circumstances require the state to “prohibit the most compelling interest,” as the court had held in earlier abortion cases?
The Supreme Court began hearing arguments Friday in a case that could set some of the most sweeping restrictions on abortion in the country.
Justices listened intently in the high court’s final weekend session before summer break. The hearing gave them the rare opportunity to see anti-abortion advocates oppose abortion providers. Demonstrators turned out outside, waving signs, promoting various causes and asking questions of the justices.
The case is one of the most politically sensitive matters before the Supreme Court this term. The justices are taking it up after three lower courts struck down laws that were challenged by a Texas abortion provider.
In their arguments before the justices, lawyers spent most of their time focused on the question of whether the “current and ancient” long-ago ruling in Roe v. Wade says a woman’s right to an abortion is a constitutional right and that states must meet standards to protect women’s health and safety. Arguing for the clinic, Eliza Goolsby gave a lengthy description of the wide-ranging constitutional provisions dealing with civil rights, free speech and reproductive rights, pointing out that every single court case, from Plessy v. Ferguson in 1896 to Brown v. Board of Education in 1954, has said those provisions trump state efforts to restrict abortion rights.
“The only question here is whether to extend Plessy in a new context,” Goolsby told the justices. She argued that Texas could have “cleared up the quagmire” in 1976 when the Supreme Court suggested that states could regulate abortion and ensure patient health and safety, but that Texas instead wrote laws to further restrict abortion.
“These standards were deliberately aimed at restricting access to abortion,” Goolsby said.
The law at issue is a 2013 Texas law that some say would shut down all but a handful of abortion clinics in Texas. But Goolsby warned that such a law would have other consequences.
“The proposed law is unconstitutional and would strike down a law that has already given notice of the U.S. constitutional and statutory protections,” she said.
Attorney Douglas McHenry, arguing for Texas Attorney General Ken Paxton, said the threat of creating in Texas “a policy vacuum is real and it is compelling.”
McHenry told the justices that the Texas law offered clear and unobstructed access to abortion, citing existing policies and medical procedures.
The justices did not appear ready to dive into those legal complexities, however. They did not ask questions about where the Supreme Court’s abortion rulings have led the country or about statements of current presidential candidates. In the hearing, many of the justices expressed concern about the Supreme Court’s mainstay ruling in the 1973 Roe v. Wade. Chief Justice John Roberts once said that he might have flipped if not for it. Several asked questions about laws the court had struck down. And Justice Clarence Thomas, the court’s sole black justice, noted he voted for Griswold v. Connecticut, which invalidated some laws restricting abortion, and later struck down other laws that had covered abortion. “I should say that I thought Griswold was a good decision for the Court because it helped me do my job. So that’s why I voted to support that decision,” Thomas said.
He did not mention Roe.
Samuel J. Wise, the attorney for Live Action, a conservative pro-life group, offered an early warning to the justices that a group they should not listen to is Planned Parenthood. He blasted its lawyers, citing a Columbia University study that found the organization’s website to be “misleading.” The website claims that as many as 400,000 abortions were conducted in the United States in 2002, but the report also found that only about 10 percent of women seeking abortions use the organization’s services. “In the 30 years that Planned Parenthood has been an abortion provider, they have never disclosed a single accurate statistic,” Wise said. “They’ve never revealed accurate information. They’re notorious for medical misinformation. And if this court joins Planned Parenthood, it will be an enormous stain on the court.”
This article was written by Beth Reinhard, Kyle Swenson and Helen F. Hwang for The Washington Post. The Washington Post is a Tribune Publishing newspaper.