Supreme Court divided in high-stakes Texas abortion case

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US Supreme Court Case on Texas Abortion Law Could End Up in Tie

WASHINGTON, March 2 (Reuters) - A closely divided U.S. Supreme Court struggled with its biggest abortion case in years on Wednesday, with pivotal Justice Anthony Kennedy voicing concerns about a restrictive Texas law yet stopping short of signaling he would strike it down.

The court's four liberal justices indicated they believed the law, which imposes strict regulations on abortion doctors and clinic buildings, intrudes on a woman's constitutional right to end a pregnancy established in a 1973 ruling.

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Conservative justices including Kennedy expressed doubt during the 85-minute oral argument about claims by abortion providers who asserted that the Republican-backed 2013 law forced numerous clinics to shut down.

Kennedy at one point suggested sending the case back to a lower court to get further evidence on the law's impact, including an assessment of the ability of existing Texas clinics to meet the demand for abortions.

If there is evidence new clinics that meet the state's regulations have increased capacity to perform abortions, it would show the law has provided a "beneficial effect," Kennedy said.

See photos from outside the Supreme Court on Wednesday

17 PHOTOS
Supreme Court hears Texas abortion case
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Supreme Court divided in high-stakes Texas abortion case
A demonstrator holds up signs in support of pro-life rights outside the U.S. Supreme Court in Washington, D.C., U.S., on Wednesday, March 2, 2016. Supreme Court justices clashed in their first abortion showdown in almost a decade as a pivotal justice suggested the court could stop short of a definitive ruling on a disputed Texas law regulating clinics. Photographer: Andrew Harrer/Bloomberg via Getty Images
Demonstrators hold up signs in support of pro-choice rights outside the U.S. Supreme Court in Washington, D.C., U.S., on Wednesday, March 2, 2016. Supreme Court justices clashed in their first abortion showdown in almost a decade as a pivotal justice suggested the court could stop short of a definitive ruling on a disputed Texas law regulating clinics. Photographer: Andrew Harrer/Bloomberg via Getty Images
Stephanie Toti, senior counsel at the Center for Reproductive Rights, listens to a question from a member of the media outside the U.S. Supreme Court in Washington, D.C., U.S., on Wednesday, March 2, 2016. Supreme Court justices clashed in their first abortion showdown in almost a decade as a pivotal justice suggested the court could stop short of a definitive ruling on a disputed Texas law regulating clinics. Photographer: Andrew Harrer/Bloomberg via Getty Images
WASHINGTON, DC - MARCH 2: Anti-abortion advocates stand in protest outside of the Supreme Court, March 2, 2016 in Washington, DC. On Wednesday morning, the Supreme Court will hear oral arguments in the Whole Woman's Health v. Hellerstedt case, where the justices will consider a Texas law requiring that clinic doctors have admitting privileges at local hospitals and that clinics upgrade their facilities to standards similar to hospitals. (Drew Angerer/Getty Images)
WASHINGTON, DC - MARCH 2: Pro-choice advocates (left) and anti-abortion advocates (right) rally outside of the Supreme Court, March 2, 2016 in Washington, DC. On Wednesday morning, the Supreme Court will hear oral arguments in the Whole Woman's Health v. Hellerstedt case, where the justices will consider a Texas law requiring that clinic doctors have admitting privileges at local hospitals and that clinics upgrade their facilities to standards similar to hospitals. (Drew Angerer/Getty Images)
A demonstrators holds up a sign in support of pro-choice rights outside the U.S. Supreme Court in Washington, D.C., U.S., on Wednesday, March 2, 2016. Supreme Court justices clashed in their first abortion showdown in almost a decade as a pivotal justice suggested the court could stop short of a definitive ruling on a disputed Texas law regulating clinics. Photographer: Andrew Harrer/Bloomberg via Getty Images
A demonstrator holds up a sign in support of pro-life rights outside the U.S. Supreme Court in Washington, D.C., U.S., on Wednesday, March 2, 2016. Supreme Court justices clashed in their first abortion showdown in almost a decade as a pivotal justice suggested the court could stop short of a definitive ruling on a disputed Texas law regulating clinics. Photographer: Andrew Harrer/Bloomberg via Getty Images
A demonstrator holds up a sign in support of abortion rights outside the U.S. Supreme Court in Washington, D.C., U.S., on Wednesday, March 2, 2016. Supreme Court justices clashed in their first abortion showdown in almost a decade as a pivotal justice suggested the court could stop short of a definitive ruling on a disputed Texas law regulating clinics. Photographer: Andrew Harrer/Bloomberg via Getty Images
WASHINGTON, DC - MARCH 2: Pro-choice advocates rally outside of the Supreme Court, March 2, 2016 in Washington, DC. On Wednesday morning, the Supreme Court will hear oral arguments in the Whole Woman's Health v. Hellerstedt case, where the justices will consider a Texas law requiring that clinic doctors have admitting privileges at local hospitals and that clinics upgrade their facilities to standards similar to hospitals. (Drew Angerer/Getty Images)
WASHINGTON, DC - MARCH 2: Anti-abortion advocates rally outside of the Supreme Court, March 2, 2016 in Washington, DC. On Wednesday morning, the Supreme Court will hear oral arguments in the Whole Woman's Health v. Hellerstedt case, where the justices will consider a Texas law requiring that clinic doctors have admitting privileges at local hospitals and that clinics upgrade their facilities to standards similar to hospitals. (Drew Angerer/Getty Images)
WASHINGTON, DC - MARCH 2: Pro-choice advocates rally outside of the Supreme Court, March 2, 2016 in Washington, DC. On Wednesday morning, the Supreme Court will hear oral arguments in the Whole Woman's Health v. Hellerstedt case, where the justices will consider a Texas law requiring that clinic doctors have admitting privileges at local hospitals and that clinics upgrade their facilities to standards similar to hospitals. (Drew Angerer/Getty Images)
Supporters of legal access to abortion, as well as anti-abortion activists, rally outside the Supreme Court in Washington, DC, March 2, 2016, as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. / AFP / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supporters of legal access to abortion, as well as anti-abortion activists, rally outside the Supreme Court in Washington, DC, March 2, 2016, as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. / AFP / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supporters of legal access to abortion, as well as anti-abortion activists, rally outside the Supreme Court in Washington, DC, March 2, 2016, as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. / AFP / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supporters of legal access to abortion rally outside the Supreme Court in Washington, DC, March 2, 2016, as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. / AFP / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supporters of legal access to abortion rally outside the Supreme Court in Washington, DC, March 2, 2016, as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. / AFP / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
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The outcome appeared to be in the hands of Kennedy, who often casts the deciding vote in close rulings. In past abortion cases, he has backed a fundamental right to abortion while supporting some restrictions.

The court was shorthanded with only eight justices following the Feb. 13 death of conservative Antonin Scalia, leaving the liberals and conservatives evenly divided.

The best that supporters of the law could hope for would be a 4-4 split that would let stand a lower-court ruling that affirmed the Texas regulations but set no nationwide legal precedent on whether other states could enact similar measures.

However, a such ruling leaving the Texas law intact could encourage other states with anti-abortion legislatures to pass similar laws.

Kennedy gave little indication he would be willing to uphold the law in full, as his three conservative colleagues would be expected to do. If Kennedy sides with the court's four liberals, the court could either send the case back to the lower court or strike it down.

A ruling is due by the end of June. A decision sending the case to a lower court could mean the dispute might not be resolved for years.

Data curated by InsideGov

Some justices questioned the lack of evidence on why specific clinics closed after the law was passed, which could be addressed if new legal proceedings take place. Abortion providers assert that the law caused 22 of 41 clinics to close, but the state contests those numbers.

"What is the evidence in the record that the closures are related to the legislation?" conservative Chief Justice John Roberts asked.

Texas contends the law, passed by a Republican-controlled legislature and signed by a Republican governor, protects women's health. The abortion providers who have challenged it assert that the regulations are aimed at shutting down their clinics.

RELATED GALLERY: Demonstrators take on strict limits on abortion in Texas

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Texas abortion protests, closed clinics
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Supreme Court divided in high-stakes Texas abortion case
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: 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: 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)
AUSTIN, TX - JUNE 25: Reproductive rights advocates fill the Texas capitol celebrating the defeat of the controversial anti-abortion bill SB5, which was up for a vote on the last day of the legislative special session June 25, 2013 in Austin, Texas. A combination of State Sen. Wendy Davis' (D-Ft. Worth) 13-hour filibuster and protests by reproductive rights advocates helped to ultimately defeat the controversial abortion legislation at midnight. (Photo by Erich Schlegel/Getty Images)
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MEDICALLY INDUCED ABORTIONS

In a sign that he was not comfortable with aspects of the law, Kennedy sounded concerned about a possible increase in surgical abortions prompted in part by the state's separate new restrictions on medically induced abortions, in which women take pills to terminate a pregnancy. Kennedy said that "this law has really increased the number of surgical procedures as opposed to medical procedures, and that this may not be medically wise."

Abortion rights advocates say surgical abortions increased because of the delays women seeking an abortion faced as a result of the 2013 law.

Liberal Justice Ruth Bader Ginsburg questioned the need for a provision of the law requiring clinics to have costly, hospital-grade facilities, when abortions almost always are low-risk procedures for the woman.

"What was the problem the legislature was responding to that it needed to improve the facilities for women's health?" Ginsburg asked.

The Texas law requires abortion doctors to have "admitting privileges," a type of formal affiliation, at a hospital within 30 miles (48 km) of the clinic. Abortion providers say the provision already has forced clinics to close because such an affiliation is hard to obtain.

Data curated by InsideGov

The abortion providers also challenged a provision, not yet in effect, requiring clinics to have hospital-grade facilities with standards for corridor width, plumbing, parking spaces, room size, the spacing of beds and many other attributes.

Conservative Justice Samuel Alito indicated support for the regulations and referred to evidence that abortion facilities in Texas "have been cited for really appalling violations when they were inspected: holes in the floor where rats could come in, the lack of any equipment to adequately sterilize instruments."

The Supreme Court's last major abortion ruling came in 2007 when it upheld a federal law banning a late-term abortion procedure.

The Supreme Court legalized abortion in the 1973 Roe v. Wade case. But abortion remains a disputed issue in the United States, as it does in many countries, and some states have passed laws aiming to place a variety of restrictions on a woman's ability to terminate a pregnancy.

The court is considering the Texas case in the midst of the heated campaign ahead of the Nov. 8 U.S. presidential election.

(Reporting by Lawrence Hurley; Additional reporting by Joan Biskupic and Clarece Polke; Editing by Will Dunham)

Data curated by InsideGov

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