Eight years after its last major ruling on abortion rights, the Supreme Court on Friday afternoon agreed to decide the constitutionality of a 2013 Texas law imposing new rules for clinics and doctors. The earliest that the case would be heard is February. The Court granted review of one of two appeals on such laws; the other was from Mississippi.

In a second order, the Court said it would hold a hearing on a constitutional test of a new congressional districting map for Virginia, but left open the possibility that the case would be dismissed for a procedural reason. The case (Wittman v. Personhuballah) involves District 3, the one congressional district in the state that has a majority-black population. The question is whether race was used unconstitutionally in shaping that district’s lines.

The new abortion case, Whole Woman’s Health v. Cole, is focused on two new restrictions in the Texas law: doctors who perform abortions must have the right to send patients to a full-scale hospital no further than thirty miles from the clinic, and each clinic must have the same facilities as a surgical center. The clinics and doctors argue that neither is necessary, and both will narrow access to abortion services by forcing clinics to close.

However, the case has larger implications: the clinics and doctors involved are asking the Court to reaffirm prior rulings that spell out when a new abortion law imposes an “undue burden” on women’s right to end their pregnancies. That standard stems from a 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, that reaffirmed much of the abortion right established in Roe v. Wade in 1973.

In addition, they want the Court to order lower courts to judge whether new restrictions on abortions actually would work to protect women’s health — a test that the U.S. Court of Appeals for the Fifth Circuit refused to undertake in the Texas case now before the Court. The Fifth Circuit ruled that a court must accept the views of the legislature that a new law would serve that interest.

The Court has not ruled on the validity of an abortion law since its 2007 decision in Gonzales v. Carhart, upholding a federal law that banned so-called “partial-birth” abortions.

In recent years, state legislatures have been passing a wide variety of laws to restrict abortion rights, with the laws taking two forms: new standards for the operation of clinics and the services of doctors, and new bans on abortion rights themselves at earlier stages of pregnancy than the Court has previously allowed. The Texas case in which the Court granted review on Friday involves the first approach; cases are at the Court or on the way on the second approach.

The Court had before it at its private Conference earlier in the day Friday the Texas case, along with a second case, from Mississippi — Currier v. Jackson Women’s Health Organization. Like the Texas case, the Mississippi case involves the hospital admission privileges requirement for doctors who perform abortions, but it does not include the requirement to have facilities capable of handling major surgeries. The Court apparently has chosen not to review the Mississippi case, but probably will hold it until it rules on the Texas controversy.

The Texas law has already resulted in the closing of a number of clinics in Texas, which at one time recently had forty-two of those facilities. The number is now down to nineteen, and clinics and doctors argued that the number would drop to ten to serve the entire state, if the Court were to uphold the new restrictions. In the Mississippi case, it has been argued that, if the admissions privilege requirement is upheld, that would result in the closing of the only clinic left in the state — in Jackson. Women in Mississippi would then have to go out of state to get abortion services.

In Texas, it is estimated that there are 5.4 million women of child-bearing age. Each year, more than 60,000 women in the state seek an abortion. Limiting the total number of clinics to ten, the providers told the Supreme Court, “would operate just as drastically as a complete ban on abortion.”

The Court has not yet filled its February calendar of oral arguments, so the Texas case could be set for hearing in that sitting, which runs from February 22 to March 2.

The Justices’ decision on Friday to take on the Virginia congressional redistricting case involved a couple of puzzling facts. First, the specific map for District 3 that the eight Republican members of the state’s delegation in the House of Representatives are seeking to defend has already been replaced by one new plan, which similarly has been struck down by a three-judge federal district court.

And, after the state legislature failed to draw a replacement map last summer, the three-judge court began a new effort to craft a new map, and is already well advanced in that project, with a special master now reviewing several proposed plans.

Another uncertainty about the case is that the Court is not yet satisfied that the eight members of Congress have a right, under the Constitution’s Article III, to be in court. The Court already has asked the parties once to file briefs on that point about “standing,” and the two sides could not agree on an answer.

In Friday’s order, the Court said it would schedule a hearing on the lawmakers’ appeal, but again told the lawyers to be prepared to file new briefs and be prepared to argue this question: “Whether appellants [the members of Congress] lack standing because none reside in or represent the only congressional district whose constitutionality is at issue in this case.”

The Justices said they would not settle the question whether they have jurisdiction to decide the case, until they hold a hearing, at which the “standing” issue will be explored further.

The map that is at issue in this appeal was struck down by the three-judge district court as an unconstitutional “racial gerrymander” — that is, a case in which the district lines were drawn with race as the predominant factor in deciding what voters to include and what voters to exclude.

District 3, represented by Democratic Rep. Bobby Scott, was first created in 1991 as a majority-black district. In drawing new lines after the 2010 census, the state legislature maintained its black majority but with a reduced proportion.

The district is oddly shaped, starting with parts of Richmond and winding its way through parts of Petersburg and Newport News, with a hop over neighboring District 2 to pick up black voters in Hampton, then crosses the James River and the Chesapeake Bay to pick up voters in Norfolk. The Republican members of the House intervened to defend that district, and they have argued that they are entitled to be in the case because the shape of District 3 also influences the shape of all other districts in the state. Rep. Scott is not involved in the case, which was originally filed by three Virginia voters, complaining of a “racial gerrymander.”

The date for the Court’s hearing on that case has also not been set yet.

Recommended Citation: Lyle Denniston, Court to rule on abortion clinic restrictions, SCOTUSblog (Nov. 13, 2015, 2:32 PM), https://www.scotusblog.com/2015/11/court-to-rule-on-abortion-clinic-restrictions/