The U.S. Supreme Court heard arguments Wednesday in the most important abortion case in decades — a Texas law that has implications for Georgia and the way it regulates abortions.
At issue is whether the Texas statute places an undue burden on women seeking abortions by establishing regulations so strict that many abortion clinics can’t satisfy them and must close.
The court’s ruling may not come until June, and the death of Justice Antonin Scalia means the eight-member court may deadlock 4-4. Such a tie would leave the law in place until it can be argued again once there are again nine justices.
“If the Supreme Court rules (for Texas), I would predict there will be a flurry of bills for further restrictions on them,” state Sen. Renee Unterman, R-Buford, said of abortion clinics. Unterman sponsored legislation that is pending this session to provide $2 million to an organization that offers alternatives to abortion.
The flurry of bills she describes wouldn’t come until the 2017 legislative session, but many believe they will be inevitable if the Texas law survives the court’s review.
“If there’s a 4-4 tie, you can bet other states will enact similar laws, including Georgia,” said Eric Segall, the Kathy and Lawrence Ashe professor of law at Georgia State University. “I have no doubt Georgia would enact that kind of law if it could.”
This is a rare occasion on which the opposite sides of the abortion issue agree: a tie could be as good as a win for abortion opponents, at least until there is a full court seated to rehear the matter.
“It certainly could usher in a sea tide similar to restrictive bills in other states,” said Maya Dillard Smith, executive director of the Georgia chapter of the American Civil Liberties Union.
Emily Matson, executive director of the Georgia Life Alliance, said stricter rules are needed. “The need to revisit our regulations has been long-coming. This case … will certainly have an impact as to what laws can be pursued to improve our law here in Georgia,” Matson said.
During 90 minutes of intense arguments Wednesday, it seemed at least possible — if not likely — that the justices would end up in a tie.
The 2013 Texas abortion law requires that abortion clinics be staffed and equipped the same as “ambulatory surgical centers,” which are essentially small hospitals. It also requires that doctors who perform abortions have admitting privileges to a full-service hospital that is less than 30 miles away.
Georgia’s attorney general and those of 20 other states submitted briefs supporting the Texas statute. Unlike the Texas law, Georgia imposes the “ambulatory surgical center” rule only on abortions performed after the first trimester.
Texas officials say their law is intended to protect women, not prevent them from having abortions.
“Abortion is a surgical procedure and it can endanger a woman’s life and her health,” said Zemmie Fleck, the executive director of Georgia Right to Life. “The same surgical standards for appendectomy and a tonsillectomy should be for abortions as well.”
But abortion rights advocates say that is only a ruse and the goal is to keep women from terminating their pregnancies.
About half of the 41 clinics in Texas closed when the law took effect. Nineteen remained open only because the justices voted 5-4 in June to temporarily block the law from taking full effect. If the justices ultimately decide in favor of the Texas statute, advocates say the number of clinics in that state will be cut in half again, leaving large swaths of Texas without easy access.
The clinics that brought the case to the U.S. Supreme Court asked the justices to settle the question of whether they must simply accept lawmakers’ assertions about the health benefits of abortion restrictions or require them to produce evidence backing those claims.
On Wednesday, the four liberal justice pushed Texas Solicitor General Scott Keller to justify the need for more stringent regulations. Justice Ruth Bader Ginsburg asked whether the existing state law “was not sufficiently protective of women’s health.”
Keller conceded that there were complications in 1 percent of the state’s 70,000 abortions in a recent year but said that statistic could be improved.
The states between Georgia and Texas also have restrictions, causing some women to travel to Georgia, where the law is less restrictive, to have the procedure. Fourteen abortion clinics operate in Georgia; three perform abortions after the first trimester. First-trimester abortions may also be performed in a doctor’s office.
Georgia law requires that women receive information from providers about the consequences of abortion and then wait 24 hours before having the procedure. In addition, parents must be notified before a minor can terminate a pregnancy. And bills pending in the Legislature would ban the sale of aborted fetal tissue and mandate that courts report statistics on girls ages 17 and younger who seek an abortion without notifying their parents.
Smith of the Georgia ACLU said the Texas case and the proposed laws in Georgia are part of a trend to restrict abortion under the guise of public health and safety.
“It’s part of a trend of restricting access that then creates a necessity for women seeking such services to cross state lines and endure incredible burdens,” Smith said.
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