A few thoughts on the eve of U.S. Supreme Court arguments about a Texas abortion law:
- What’s at issue is a piece of the Texas abortion regulation that was passed only after a huge uproar in Austin. Wendy Davis and her pink-sneakered filibuster couldn’t prevent passage of the legislation almost three years ago. It took some fast action to get the case to the Supreme Court in less than three years. The Massachusetts buffer zone case took much longer than that.
- I’m indebted to Steve McDonald of GraniteGrok for pointing me to a post from The Federalist that makes a point not yet stressed in most coverage of the case, Whole Woman’s Health v. Hellerstedt: there are parts of the Texas law that aren’t even being challenged. “Almost three years ago the Texas legislature enacted HB2, the principle [sic]components of which are (1) restricting abortions after 20 weeks, when we know the unborn child can feel pain; (2) requiring abortionists to comply with the Food and Drug Administration’s approved protocol on chemical abortions; and (3) ensuring that abortionists would have to comply with basic health and safety standards….[the] prohibition on abortions after 20 weeks remains unchallenged.…The Court will not consider that part of the law because the abortion industry, despite its claims about harm to women and Wendy Davis’s rhetoric, has chosen not to challenge it.” [emphasis added]
- The omnibus Texas law was a direct response to the Gosnell case in Pennsylvania – in effect, a Gosnell prevention act. It’ll be interesting to see if that comes up in tomorrow’s oral arguments.
- With the recent death of Justice Scalia, observers with more time than I for Court-watching have suggested that a 4-4 split is likely in this abortion-law case, which would leave lower-court decisions intact. Any decision in the case is weeks or months away.
I’ll be looking to scotusblog.com for updates on this week’s arguments.