Supreme Court closely divided on abortion case

WASHINGTON — The Supreme Court appeared deeply divided Wednesday over the most far-reaching abortion rights case it has considered in a generation, with the fate of abortion restrictions in many states on the line.

The court's four liberal justices left little doubt they would vote to strike down a Texas law imposing tight regulations on abortion clinics and doctors, so the eight-member court — depleted by the death last month of Justice Antonin Scalia — almost certainly cannot issue a decision establishing a national precedent that would set tougher standards for abortion clinics coast to coast.

But it seemed possible that Justice Anthony Kennedy, who likely holds the deciding vote, would seek to have the case returned to Texas for additional fact-finding, delaying any decision until next year at the earliest. That could include whether the law's restrictions were responsible for shuttering up to 20 clinics and whether the few that remain open can handle the statewide demand for abortions.

If the case is not sent back but is decided on its merits, it seemed more likely that Kennedy would join the liberals in ruling that the law places an undue burden on abortion access without serving a legitimate medical purpose. Such a sweeping decision, which likely would be issued in late June, could impact states with similar laws.

Future of Texas abortion case at crossroads

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The Texas case is the most significant to reach the high court since 1992, and it brought forth a huge demonstration by abortion rights proponents outside the court. More than 1,000 people, mostly women, urged the justices to strike town the Texas restrictions and, by extension, those in other states.

Inside the hushed courtroom, where Chief Justice John Roberts allowed the usual hour-long oral argument to stretch for 85 minutes, White House senior advisor Valerie Jarrett was among those listening intently as U.S. Solicitor General Donald Verrilli labeled the law "the definition of an undue burden." That was a reference to the court's standard for the type of restrictions that should not be allowed in its 1992 ruling in Planned Parenthood v. Casey.

Kennedy acknowledged the state would face a "capacity problem" if only 10 clinics survive, as the law's challengers claim would happen if a federal appeals court decision since blocked by the Supreme Court is allowed to go into effect. He also noted that the law has led to an increase in surgical abortions and a decrease in those induced by medication, the opposite of national trends. "This may not be medically wise," he said.

Early on, the court's conservatives expressed skepticism that the law had caused so many Texas clinics to close. Adopted by the state Legislature in 2013, it set tougher operating standards for clinics and required doctors performing abortions to have admitting privileges at nearby hospitals. Since its passage, more than 40 abortion facilities in the state have dwindled to 18, with more closures threatened.

Roberts and Justice Samuel Alito told Stephanie Toti, the lawyer representing the abortion clinics, that scant evidence was offered to show the law triggered the closings. They also said the challengers failed to prove that the remaining clinics could not handle roughly 70,000 abortions a year — though Roberts admitted evidence of insufficient capacity was a "statistically significant showing."

In Texas, going the distance for an abortion

When Texas Solicitor General Scott Keller stood to make the state's case, the liberal justices pounced. They argued that Texas legislators singled out abortion for tough medical standards not required for riskier procedures, such as colonoscopies and liposuction. They said the two restrictions serve no purpose and have not made abortions safer. And they said more clinic closures would leave the state unable to handle 5.4 million women of reproductive age.

"This is among the most safe, the least-risk procedures, an early-stage abortion," said Justice Ruth Bader Ginsburg, who arrived at the court the year after Casey said states could impose restrictions that do not represent an undue burden on women seeking abortions. "So what was the problem that the Legislature was responding to?"

"Increasing the standard of care is valid," Keller said later, to which Justice Sonia Sotomayor responded: "It's valid only if it's taking care of a real problem."

Without Scalia, the state probably can do no better than a 4-4 vote upholding last year's ruling by the U.S. Court of Appeals for the 5th Circuit. That would apply to Texas, Mississippi and Louisiana, but no further.

If Kennedy and the court's liberal justices strike down any part of the law, on the other hand, the 5-3 decision could implicate similar abortion restrictions imposed by conservative legislatures in other states. Such a ruling could be the biggest victory for supporters of abortion rights since two prior landmark decisions: Roe v. Wade, which legalized abortion in 1973, and Casey, which set the current rules for restrictions in 1992.

"This isn't just about Texas," Nancy Northup, president of the Center for Reproductive Rights, said on the eve of the Supreme Court showdown, noting some 250 restrictions have been imposed across the country in the past five years. Those restrictions range from 24-hour waiting periods and parental notification laws, mostly upheld by lower courts, to bans on abortion after six or 12 weeks, which courts have blocked.

Abortion war in Texas tests high court standard

Abortion rights advocates say the burden is clear from the hundreds of miles women outside Texas' major cities have to drive to reach a clinic and the days, even weeks they have to wait before getting an abortion. But state officials and abortion opponents say the clinics that are not threatened will provide superior treatment and can adequately serve the state. Their argument was supported in part by Alito, who said, "There's no evidence of the actual capacity of these clinics."

Among about 80 briefs submitted to the court are several in which women recounted their own abortion experiences — successful lawyers and professionals defending the decisions they made early in life as well as others who say they came to regret the procedures.

Abortion case at Supreme Court gets personal

Abortion opponents urge Supreme Court to uphold Texas law

The last case involving the medical procedure was decided in 2007, when the justices upheld a federal law banning late-term — so-called "partial birth" — abortions. Kennedy wrote the 5-4 opinion, famously asserting that "some women come to regret their choice to abort the infant life they once created and sustained."

The Texas case focuses on the day-to-day hardships endured by women — many of them poor or Hispanic — who face difficulties obtaining abortions because of widespread clinic closures.

If the law is allowed to stand, the 10 remaining clinics will be centered in four metropolitan areas — Houston, Dallas-Fort Worth, Austin and San Antonio. One additional clinic near the Mexican border in McAllen will be allowed to stay open, but with new restrictions that could leave only one 75-year-old retired doctor -- Sotomayor called him an "endentured slave" -- able to perform abortions.

The only clinics in El Paso would close, which could send more women across the border into New Mexico. That angered Ginsburg, who noted New Mexico lacks the restrictions for clinics and doctors that Texas says are necessary to protect women's health.

Keller's response was simple: "Texas obviously can't tell New Mexico how to regulate."

USA TODAY's 2015 Supreme Court Decision Tracker