FORT WORTH — Behind double-locked doors, beyond a waiting room named for Michelle Obama, past walls painted in signature purple hues called “Enigma” and “Intuitive,” the women who work at this abortion clinic await word from a man in Washington about whether a Texas law will force it to close.
Outside a suburban Starbucks miles away, an administrative assistant would like that same man, Justice Anthony M. Kennedy, to know that the law already has so reduced the number of providers in Texas that she took out a payday loan and hopped a plane to California for the abortion she had trouble scheduling in her home state.
And in the red granite Capitol in Austin, officials are also looking to Kennedy but want him to consider an alternative narrative about the law, which imposes new requirements on doctors and requires that even early abortions be performed in surgical centers.
These officials say the act grew out of concern for the health of women who choose the procedure and fits perfectly within the judicial compromise that Kennedy helped draft 24 years ago reaffirming a woman’s right to abortion but recognizing the state’s interest in protecting potential life.
The Supreme Court’s most important abortion case in decades, being heard on Wednesday, is pitched to an audience of one.
Justice Antonin Scalia’s unexpected death complicates the impact of the court’s eventual decision. But if the challengers are able to convince Kennedy that the Texas law goes too far, it would have national implications. States have passed more than 250 restrictions on abortion in the past five years.
The case remains “monumental,” said Nancy Northup, president of the Center for Reproductive Rights (CRR), which is leading the legal challenge.
“These issues about these unnecessary health regulations shutting down abortion or cutting off services have to be resolved. The cases are going to keep on coming,” Northup said. “We are looking to get five votes, if not more, to be able to stop what has been a huge devastation of abortion access in Texas and threatens elsewhere.”
Kennedy, 79, is hardly the rescuer that abortion rights supporters would wish for. In his nearly three decades on the court, he has upheld every abortion restriction he has ever considered save one. The exception was a Pennsylvania law that required pregnant women to notify their husbands before seeking an abortion.
He is the remaining justice of the trio who in 1992 set the current test for when abortion restrictions go too far. In Planned Parenthood v. Casey, Kennedy and Justices Sandra Day O’Connor and David H. Souter upheld the basic framework of Roe v. Wade, finding that a woman’s right to an abortion is protected by the Constitution.
The opinion also recognized that states have an interest in protecting potential life but that restrictions could not impose an “undue burden” on a woman’s right to an abortion before fetal viability.
“Justice Kennedy’s the only path to victory for the clinics,” said David Cohen, a law professor at Drexel University who has written about the abortion rights movement. The calculation assumes that the court’s four liberals — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — will agree with abortion providers that Texas’s law is too onerous.
“The key is going to be whether Kennedy thinks this is broader than any restriction he’s seen,” Cohen said.
Texas argues that its 2013 law was a logical response to the shocking indictment of Philadelphia abortion provider Kermit Gosnell, who was convicted that year of first-degree murder in the deaths of three infants born alive and involuntary manslaughter in the death of a woman undergoing the procedure in his under-
The state’s restrictions were meant to ensure the safety of women undergoing the procedure, Texas told the Supreme Court, and fit within Kennedy’s opinion in Casey that “states may regulate abortion, so long as the regulations have a rational basis and do not have the purpose or effect of creating a substantial obstacle to abortion access.”
One of the Texas provisions being challenged requires abortion clinics to meet the standards of ambulatory surgical centers. It was one of the recommendations of the grand jury that indicted Gosnell.
The other provision in question requires doctors to obtain admitting privileges at local hospitals, which would allow the doctors to treat patients there in case of emergencies. Supporters call this another common-sense measure to ensure continuing care of a woman who develops complications.
Five other states, including Virginia, require first-trimester abortions to be performed in the hospital-like settings Texas requires. At least nine have the same type of admitting-privileges requirement, according to the CRR. Other states have different versions of both.
The number of clinics in Texas has dropped from about 40 to 19 since portions of the law went into effect. If the providers lose at the Supreme Court, they say the number will drop to 10 for a population of 5.4 million women of reproductive age.
At Whole Woman’s Health of Fort Worth, director of clinic services Marva Sadler said her clinic would close. There is not enough room to convert the clinic into a surgical center, and the cost is prohibitive.
The rooms in the center are named for strong women, she said — Michelle Obama, Rosa Parks, Georgia O’Keefe and Rosie the Riveter among them. Overhead lights are rarely on. “I don’t want anyone to feel like she’s under a spotlight,” Sadler said.
In the recovery room, women sit in recliners and drink a special tea mixed by an herbalist in Austin. Music is played, in part to drown out the shouting of protesters just yards away, who pay rent on the property next door so they can demonstrate.
While the three doctors who work at her clinic have admitting privileges at a nearby hospital, these are unnecessary, she said. A hospital would accept any woman with a problem.
And the American Medical Association, which has filed a brief in support of the clinics, agrees that both requirements — on admitting privileges and surgical center facilities — are not necessary.
“Laws that regulate abortion should be evidence-based and designed to improve women’s health,” said the AMA brief. “The challenged provisions of H.B. 2 are neither.”
“It’s not about the woman; it’s about an attack on women,” Sadler said. “Our objections went unheard because they didn’t matter from the beginning, in my opinion. The agenda had been set.”
Texas presented medical officials who said the requirements would benefit women. A trial judge found the arguments unconvincing and struck down those provisions of the law. But a panel of the U.S. Court of Appeals for the 5th Circuit reversed that decision and said courts do not have to scrutinize the rationale provided by a legislature for abortion laws as long as that rationale has a reasonable basis.
Nine states have joined Texas in asking the court to allow them to regulate health standards for abortion providers, just as for other procedures.
“There is nothing exceptional about the practice of abortion that should lead the court to endorse a constitutional right to the unsafe practice of medicine, which doctors in no other context enjoy,” said the brief filed by the governors.
And the National Right to Life Committee urges the Supreme Court not to take on the role of “the nation’s medical board.”
But abortion rights supporters say the court has an obligation to decide whether the regulations are defensible or simply a pretext for making it harder for women to access abortion.
The joint opinion in Casey holds that an undue burden could include “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”
Texas says that even with the reduced number of clinics, “over 90 percent of Texas women of reproductive age will live within 150 miles of an open abortion clinic.”
Former Texas solicitor general Jonathan Mitchell has filed a supporting brief that says the providers have not met their burden of proving that it was H.B. 2 that caused clinics to close. His brief says that they “failed to produce any evidence that any patient in Texas was unable to obtain an abortion after the admitting-privileges law took effect on October 31, 2013 — or that any patient encountered ‘substantial obstacles’ in doing so.”
It labels as “outlandish” a study done after the trial in district court that claimed long waiting times for women trying to secure abortions and an assertion that women were either self-inducing abortions or having abortions later in their pregnancies, when other Texas restrictions apply.
But Candice Russell, an administrative assistant in the Dallas-Fort Worth Metroplex, said the problem was real for her.
Her birth control device, an IUD, failed, and she was fairly far along when she realized she was pregnant, she said in an interview. The first appointment she could get was in two and a half weeks, she said. She worried that if she missed it because of work, it would be too late.
So she went to California, where her ex-boyfriend had just moved, and quickly had an abortion. She said she was lucky.
“I took out a payday loan, and it put me in debt for a little bit,” Russell said. “But I think about women in the Panhandle or the [Rio Grande] Valley. Can they get on a plane, fly 1,500 miles away and get an abortion? No.”