WASHINGTON — The Supreme Court on Wednesday appeared sharply and perhaps evenly divided in its first major abortion case in almost a decade, one that has the potential to revise constitutional standards and to affect millions of women.
Several justices seemed frustrated by gaps in the factual record presented to them. The three more conservative justices said there was little evidence that clinics have closed or would close because of the law.
Justice Anthony M. Kennedy, who almost certainly holds the crucial vote, mused that it might be useful to return the case to the lower courts to develop more evidence. He said it would help to know how many abortions could be performed in the clinics that would remain open if a restrictive Texas law was allowed to become fully effective.
The court’s four liberal justices were adamant that the restrictions imposed by the law served no medical purpose and cannot pass constitutional muster.
Justice Antonin Scalia’s death last month may have muted the prospect of truly bold action, but even a 4-to-4 tie would have enormous consequences because it would leave in place an appeals court decision that could drive down the number of abortion clinics in Texas to about 10, from roughly 40.
The case is one of the most consequential on the docket this term, and that was reflected by a huge, boisterous crowd that gathered on the sidewalk in front of the Supreme Court before the arguments started, filling the air with the voices of activists who were braving a stiff wind and biting cold.
Some people had lined up as early as Tuesday night for the chance to witness the arguments, and less than an hour before they began, the demonstrations were outgrowing the sidewalk and police officers struggled to keep people out of the street.
One woman urged on those who had congregated, holding signs with messages like “Abortion on Demand and Without Apology” and “No Uterus No Opinion.” Speak up, she said, “so they’ll know that there’s a whole lot of people out here that they’re going to have to answer to!”
A group of anti-abortion demonstrators stood in a wide circle, quietly facing the crowd with signs that read “Protect Women Protect Life,” as abortion rights activists formed a ring around them, blocking them from view.
Annie Piper, 19, said she arrived at 7:30 a.m. Wednesday with a couple of other students from Liberty University, an evangelical Christian school in Virginia, to demonstrate in favor of stricter abortion laws. She said she worries that facilities that perform abortions are not adequately protecting women. An anti-abortion club at her university gathers outside a Planned Parenthood clinic every Saturday, she said.
“I believe our group has had experiences with women coming out of the clinic who are hurt emotionally, and we’ve seen how it affects the women,” she said. “I have heard many testimonies of women who have been affected by the standards that weren’t up to par.”
A handful of women stood in front of another woman who was holding an anti-abortion sign, asking her what her cause meant for those in black communities who lacked access to abortion services and other health care.
Mwende Katwiwa, 24, a program assistant at Women With a Vision, a New Orleans organization that supports black women, said the anti-abortion protesters were only waiting to shout down the other side.
“In this battle, when we’re talking about the war on women, the ones who are on the front lines are us in the South and us who look like this, live in this identity,” she said. “But the ones who get the most voice, the ones who get to talk about it, are all these folks here who you see who don’t live or exist in our communities, but somehow get to make the decisions that impact us the most.”
The court’s last abortion decision, in 2007 in Gonzales v. Carhart, upheld the federal Partial-Birth Abortion Ban Act, which banned a particular abortion procedure. The new case, Whole Woman’s Health v. Hellerstedt, No. 15-274, concerns a more fundamental question and may turn out to be the third installment in a legal trilogy on the scope of the constitutional right to abortion — one that started in 1973 with Roe v. Wade, which recognized a constitutional right to abortion, and continued in 1992 with Planned Parenthood v. Casey.
The Casey decision said states were not permitted to place undue burdens on the constitutional right to an abortion before the fetus was viable. Undue burdens, it said, included “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”
The new case concerns two parts of a Texas law that imposes strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor then.
One part of the law requires all clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.
The clinics challenging the law say it has already caused about half of the state’s 41 abortion clinics to close. If the contested provisions take full effect, they say, the number of clinics would again be halved.
The remaining clinics would be clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio.
“None is located west or south of San Antonio, a vast geographic area that is larger than California,” a brief for the clinics said.
The United States Court of Appeals for the Fifth Circuit allowed a partial exemption for a clinic in McAllen, in South Texas, the brief added, but “imposed limitations on the clinic’s operational capacity that would severely restrict its ability to provide abortions.”
Officials in Texas said that the contested provisions were needed to protect women’s health, but abortion providers responded that the regulations were expensive, unnecessary and intended to put many of them out of business.
The lower courts are divided over whether they must accept lawmakers’ assertions about the health benefits of abortion restrictions at face value or instead determine whether the assertions are backed by evidence.
In June, the Fifth Circuit, in New Orleans, largely upheld the contested provisions of the Texas law, using the more deferential approach. The court ruled that the law, with minor exceptions, did not place an undue burden on the right to an abortion.
The court said women in West Texas could obtain abortions in New Mexico, a ruling in tension with one from a different panel of the same court that said Mississippi could not rely on out-of-state abortion clinics in defending a law that would have shut down the state’s only clinic.
In November, the federal appeals court in Chicago used a more demanding standard in evaluating a Wisconsin law requiring abortion doctors to have admitting privileges at local hospitals. Judge Richard A. Posner, writing for the court, said the state’s justification for the law did not withstand scrutiny.
“The requirement of admitting privileges cannot be taken seriously as a measure to improve women’s health,” he wrote, “because the transfer agreements that abortion clinics make with hospitals, plus the ability to summon an ambulance by a phone call, assure the access of such women to a nearby hospital in the event of a medical emergency.”
The Supreme Court’s decision will probably arrive in late June, as the presidential campaign enters its final stretch, thrusting the divisive issue of abortion to the forefront of public debate.
The justices have already acted once in the Texas case. In June, by a 5-to-4 vote, they temporarily blocked the appeals court’s ruling pending its own decision in the case. Justice Anthony M. Kennedy joined the court’s liberal wing — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — to form a majority.
The clinics challenging the Texas law are hoping to capture those same five votes and to secure a ruling striking down the restrictions. Such a decision could have a broad impact, because there are similar laws in many other states.
A hint about where the Texas case is heading will arrive soon. On Feb. 24, the Fifth Circuit allowed a requirement that doctors performing abortions have admitting privileges at a nearby hospital to go into effect in Louisiana. The affected clinics have asked the Supreme Court to block the ruling and a decision is expected shortly.