Texas abortion law teed up for supreme court review

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Court Cuts Texas Abortion Access

WASHINGTON (AP) -- Abortion is back before the Supreme Court, and the justices could signal by the end of June whether they are likely to take up the biggest case on the hot-button subject in nearly a quarter-century.

If the court steps in, the hearing and the eventual ruling would come amid the 2016 presidential campaign.

The court is considering an emergency appeal from abortion providers in Texas, who want the justices to block two provisions of a state law that already has forced the closure of roughly half the licensed abortion clinics in the state. Ten of the remaining 19 clinics will have to shut their doors by July 1, without an order from the Supreme Court.

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Texas abortion law teed up for supreme court review
UNITED STATES - JANUARY 22: A group from Texas display their flags during a rally on the Mall for the March for Life anti-abortion demonstration. (Photo By Tom Williams/CQ Roll Call)
Marian Honquest, who is opposed to abortion, talks to a reporter in front of Planned Parenthood in Fort Worth, Texas, Friday, November 1, 2013. (David Kent/Fort Worth Star-Telegram/MCT via Getty Images)
Marian Honquest, who is opposed to abortion, talks to a reporter in front of Planned Parenthood in Fort Worth, Texas, Friday, November 1, 2013. (David Kent/Fort Worth Star-Telegram/MCT via Getty Images)
Mary Whitehead, an opponent of abortion, holds her rosary beads and prays on the sidewalk across the street from Planned Parenthood in Fort Worth, Texas, Friday, November 1, 2013. (David Kent/Fort Worth Star-Telegram/MCT via Getty Images)
HALTOM CITY, TX - OCTOBER 3: Texas State Sen. Wendy Davis (D) speaks at the podium as she announces her intentions to run for Texas Governor at the W.G. Thomas Coliseum in Haltom City on October 3, 2013 in Haltom City, Texas. Davis, who entered the national spotlight after holding a filibuster on a Texas abortion bill, announced her intentions to run for Texas Governor at the same location where she accepted her high school diploma. (Photo by Stewart F. House/Getty Images)
[UNVERIFIED CONTENT] Texas State Troopers separate protesters in orange from blue clad supporters rallying for a bill proposing limitations to abortion in Texas at the State Capitol on July 1, 2013.
[UNVERIFIED CONTENT] Supporters rally for a bill proposing limitations to abortion in Texas at the state capitol in Austin, Texas on July 1, 2013.
AUSTIN, TX - JULY 08: Pro-life supporters and pro-choice protesters rally at the Texas state capitol in favor and against the new controversial abortion legislation up for a vote in the state legislature on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 08: Pro-choice protester Julia Ann Nitsch of Austin chants as pro-life supporters and pro-choice protesters rally at the Texas state capitol in favor and against the new controversial abortion legislation up for a vote in the state legislature on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 08: Pro-choice protesters march down Congress Avenue and back to the Texas state capitol as pro-life supporters and pro-choice protesters rally at the Texas state capitol in favor and against the new controversial abortion legislation up for a vote in the state legislature, on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 08: Pro-choice protesters march down Congress Avenue and back to the Texas state capitol as pro-life supporters and pro-choice protesters rally at the Texas state capitol in favor and against the new controversial abortion legislation up for a vote in the state legislature on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 08: Pro-life supporters and pro-choice protesters rally at the Texas state capitol in favor and against the new controversial abortion legislation up for a vote in the state legislature on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 08: Efrain and Adriana Hernandez of Morelia, Mexico get caught up in the middle of pro-life supporters and pro-choice protesters rally at the Texas state capitol as they get their wedding photos taken at the Texas state capitol on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
[UNVERIFIED CONTENT] Anti-legislation supporters rally against a bill proposing sweeping limitations on abortion in Texas at the State Capitol on July 1st, 2013.
[UNVERIFIED CONTENT] Pro-legislation supporters rally for a bill proposing sweeping limitations on abortion in Texas at the State Capitol on July 1st, 2013.
AUSTIN, TX - JULY 01: Pro-choice and pro-life supporters fill the Texas State capitol rotunda on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: Supporters of Texas women's right to reproductive decisions rally at the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: Austin rock group The Bright Light Social Hour sing their song 'Wendy Davis' during a rally in support of Texas women's right to reproductive decisions at the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: Pro-life supporters in the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: Supporters of Texas women's right to reproductive decisions cheer under the portrait of former Texas Gov. Ann Richards at the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: Pro-life supporters pray in the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: Texas Sen. Wendy Davis (D-Ft. Worth) leads a rally in support of Texas women's right to reproductive decisions at the Texas state capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
GRAPEVINE, TX - JUNE 27: Texas Gov. Rick Perry speaks to the National Right to Life convention at the Hyatt Regency DFW International Airport Hotel June 27, 2013 in Grapevine, Texas. Perry has reportedly vowed to continue the fight for a more restrictive abortion law in Texas after the state legislature failed to get the law passed during a special session because of a filibuster and protests. (Photo by Stewart F. House/Getty Images)
CHICAGO, IL - MARCH 29: Marissa Gabrysch of Life Always speaks at the dedication of controversial pro-life billboards depicting President Barack Obama March 29, 2011 in Chicago, Illinois. Thirty of the billboards are scheduled to be placed in the city's predominately African American south and west side neighborhoods by Life Always, a Texas-based non-profit organization. (Photo by Scott Olson/Getty Images)
NEW YORK, NY - FEBRUARY 24: A controversial anti-abortion billboard picturing a young African-American girl with text stating 'The most dangerous place for an African American is in the womb,' is seen February 24, 2011 in New York City. The mother of the six-year-old girl in the photograph wants the Texas-based anti-abortion group Life Always to take the billboard down. (Photo by Mario Tama/Getty Images)
NEW YORK, NY - FEBRUARY 24: A controversial anti-abortion billboard picturing a young African-American girl with text stating 'The most dangerous place for an African American is in the womb,' is seen February 24, 2011 in New York City. The mother of the six-year-old girl in the photograph wants the Texas-based anti-abortion group Life Always to take the billboard down. (Photo by Mario Tama/Getty Images)
384840 03: A young child is surrounded by anti-abortion signs January 27, 2001 during a rally in Austin, Texas. The rally called for an end to legal abortions allowed by the 1973 U.S. Supreme Court Roe V. Wade decision. (Photo by Joe Raedle/Newsmakers)
384840 02: Anti-abortion protesters march January 27, 2001 during a rally in Austin, Texas. The rally called for an end to legal abortions allowed by the 1973 U.S. Supreme Court Roe V. Wade decision. (Photo by Joe Raedle/Newsmakers)
AUSTIN, TX - JULY 01: Supporters of Texas women's right to reproductive decisions rally at the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: A pro-life supporter in the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 01: Supporters of Texas women's right to reproductive decisions rally at the Texas State capitol on July 1, 2013 in Austin, Texas. This is first day of a second legislative special session called by Texas Gov. Rick Perry to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 08: Toddlers shoes are symbolically placed at the Texas state capitol steps as pro-life supporters and pro-choice protesters rally at the Texas state capitol in favor and against the new controversial abortion legislation up for a vote in the state legislature on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
AUSTIN, TX - JULY 08: Pro-choice protester Julia Ann Nitsch of Austin, center, chants as pro-life supporters and pro-choice protesters rally at the Texas state capitol in favor and against the new controversial abortion legislation up for a vote in the state legislature on July 8, 2013 in Austin Texas. Texas Gov. Rick Perry called on a second legislative special session to pass an restrictive abortion law through the Texas legislature. The first attempt was defeated after opponents of the law were able to stall the vote until after first special session had ended. (Photo by Erich Schlegel/Getty Images)
A man walks into a clinic that offers abortions in Santa Teresa, N.M., Friday, Oct. 3, 2014. Abortion services for many Texas women require a round trip of more than 200 miles, or a border-crossing into Mexico or New Mexico after federal appellate judges allowed full implementation of a law that has closed more than 80 percent of Texas' abortion clinics. (AP Photo/Juan Carlos Llorca)
FILE - In this July 12, 2013 file photo, abortion rights advocates fill the rotunda of the State Capitol as Texas senators were wrapping up debate on sweeping abortion restrictions and were poised to vote on a measure after weeks of protests. A federal appeals court that has already upheld a Texas law restricting abortions is hearing arguments about an even tougher part of the same law, which requires all abortion clinics to adopt costly standards mandated for walk-in surgical clinics. Texas asked the 5th U.S. Circuit Court of Appeals to reinstate the requirement found unconstitutional by a federal judge in Austin. (AP Photo/Tamir Kalifa, File)
Abortion rights demonstrators Amelie Hahn of Jackson, Mississippi, and Bill Lambert of Houston hold signs outside the 5th U.S. Circuit Court of Appeals on Friday, Sept. 12, 2014, while others shelter from the rain. A three-judge panel had just heard arguments about whether to let Texas enforce new restrictions on abortion while it appeals a district judge's ruling that those restrictions are unconstitutional. (AP Photo/Janet McConnaughey)
Young supporters of gubernatorial hopeful and state Sen. Wendy Davis are seen during her speech at the Dallas Convention Center during the Texas Democratic Convention in Dallas, Friday, June 27, 2014. Davis became a Democratic sensation nationally with a 12-plus hour Texas Senate filibuster last summer that temporarily delayed passage of strict abortion restrictions statewide. (AP Photo/LM Otero)
Texas State Senator Wendy Davis, famous for her 12-hour filibuster attempt against an anti-abortion rights bill, speaks at a fundraiser, Thursday, July 25, 2013, in Washington. (AP Photo/Nick Wass)
Kristen Adams of Dallas, shields herself from a light rain with a home made sign on poster board as she and nearly 200 others gathered to protest the approval of sweeping new restrictions on abortion, Monday, July 15, 2013, in Dallas. The gathering came as part of the National Day of Action that included similar rallies planned in several cities. (AP Photo/Tony Gutierrez)
A crowd of nearly 200 stand in front of city hall listening to speakers at a rally to protest the approval of sweeping new restrictions on abortion, Monday, July 15, 2013, in Dallas. The gathering came as part of the National Day of Action that included similar rallies planned in several cities. (AP Photo/Tony Gutierrez)
FILE - In this July 15, 2013 file photo, two signs that read "Who Lobbied For This?" and "We Need Healthcare Options, Not Obstacles" are held by attendees of a rally in front of Dallas city hall where a group of nearly 200 gathered to protest the approval of sweeping new restrictions on abortion in Texas. A U.S. appeals court on Thursday, Oct. 31, 2013, issued a ruling reinstating most of Texas' tough new abortion restrictions, which means as many as 12 clinics will not be able to perform the procedure starting as soon as Friday. (AP Photo/Tony Gutierrez, File)
Abortion rights demonstrators rally outside of the State Capitol to protest recent legislation that could shut down all but five clinics and restrict abortion rights throughout the state in Austin, Texas on Monday, July 15, 2013. Republican lawmakers in Texas passed a bill last week that would give the state some of the nation's most restrictive abortion laws and force most of its clinics to close, leading Democrats to promise a fight over the contentious measure in the courts and at the ballot box. (AP Photo/Tamir Kalifa)
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The Texas law is among a wave of state measures in recent years that have placed restrictions on when in a pregnancy abortions may be performed, imposed limits on abortions using drugs instead of surgery and increased standards for clinics and the doctors who work in them.

The Texas case involves the last of these categories. The provisions at issue require clinics to meet hospital-like surgical standards and also call on doctors who work in the clinics to have admitting privileges at a nearby hospital. Republican presidential candidate Rick Perry signed the law in 2013 when he was the state's governor.

Backers of the law say those are common-sense measures intended to protect women. Abortion rights groups say the regulations have only one aim: to make it harder, if not impossible, for women to get abortions in Texas.

The case could be attractive to the justices because it might allow them to give more definition to the key phrase from their last big abortion ruling, Planned Parenthood v. Casey, in 1992. States generally can regulate abortion unless doing so places "an undue burden" on a woman's right to get an abortion.

"Courts have been fumbling for years about what does it mean to be undue under Casey," said Priscilla Smith, a Yale Law School professor and defender of abortion rights.

Some abortion opponents also see the case as a strong candidate for Supreme Court review. "The likelihood of this case getting to the Supreme Court is very high and I think that's a good thing," said Mike Norton, senior counsel for Alliance Defending Freedom, a Christian-oriented public interest law firm.

The justices blocked the two provisions once before, in November 2014 while the New Orleans-based 5th U.S. Circuit Court of Appeals was weighing whether those parts of the law violate a woman's right to an abortion. The appeals court upheld the provisions on June 9 and has since refused to put its ruling on hold while the clinics ready their appeal to the Supreme Court.

In 2013, four justices - enough to hear an appeal - said the high court probably would want to weigh in. In an earlier phase of the same case, Justice Stephen Breyer wrote that the court probably would take up the controversial provisions.

The constitutionality of the new law is a difficult question, Breyer wrote. "It is a question, I believe, that at least four members of this court will wish to consider irrespective of the 5th Circuit's ultimate decision," he said in an opinion that was joined by the other three liberal justices.

Since then, a different set of judges from the same appeals court has prevented Mississippi from enforcing its own admitting privileges requirement because doing so would close the last abortion clinic in the state. In that case, the court said that Mississippi could not force women to cross state lines to get an abortion.

The state already was seeking Supreme Court review and the justices could say as early as Monday whether they will weigh in, although the Texas case could cause the justices to defer action in Mississippi.

In Texas, women in the El Paso area in the western part of the state would have to cross into New Mexico to reach the nearest clinic. The appeals court said that wasn't a problem because many Texas women in that part of the state already do so.

Justice Anthony Kennedy's views are likely to determine the outcome in this case, as in so many other divisive issues.

Kennedy was one of the three authors of the Casey opinion that reaffirmed a woman's right to an abortion and struck down a Pennsylvania requirement that women tell their husbands before getting an abortion. But he also wrote the 2007 opinion that upheld a federal ban on an abortion procedure that opponents call partial-birth abortion.

Legal experts on both sides of the issue said there is no indication that Kennedy might abandon his support for abortion rights altogether. But they differ on how Kennedy will view the clinic restrictions.

"I think he's quite devoted to the Casey standard and to the sense of Casey as compromised," said Smith, who argued the 2007 case at the Supreme Court.

But Carter Snead, a Notre Dame University law professor and abortion opponent, said Kennedy generally has been willing to sustain legal restrictions on abortion.

"In fact, during his tenure on the court, he has only struck down one abortion restriction, namely, the spousal notification provision at issue in Planned Parenthood v. Casey," Snead said.

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