Looming U.S. abortion ruling could be 'dangerous,' says top attorney

NEW YORK (Thomson Reuters Foundation) - As a Supreme Court decision on abortion rights is highly anticipated in the United States, few are as uniquely positioned to assess its impact as reproductive rights attorney Kathryn Kolbert, who argued the last major abortion case before the high court.

The phrase "Equal Justice Under Law" adorns the west entrance to the U.S. Supreme Court building in Washington December 3, 2014. REUTERS/Jonathan Ernst

In that 1992 challenge, the landmark Roe v. Wade ruling legalizing abortion survived, but the Supreme Court allowed for such state regulations as waiting periods.

The decision was written by Justices Sandra Day O’Connor and David Souter, who have retired, and Justice Anthony Kennedy.

Kennedy is seen as pivotal in the current case which picks up, in a sense, where the earlier case, Planned Parenthood v. Casey, left off.

This time, the court is deciding if Texas has created an undue burden for women by imposing stiff regulations on abortion clinics and doctors. Critics say the rules are a backdoor means to restrict access to abortion, known as TRAP laws.

More than half of Texas’ clinics have closed, leaving fewer than 20, advocates say, to serve the state of 27 million people.

Hardest hit have been rural, poor women for whom distance and cost have put abortions out of reach, they say.

Supporters of the laws say they protect women’s health, however. The regulations require clinics to upgrade to hospital standards and doctors performing abortions to have formal agreements to admit patients to local hospitals.

Kolbert, who heads the Athena Center for Leadership Studies at New York’s Barnard College, talked with the Thomson Reuters Foundation about the Supreme Court and abortion rights.

She co-founded the Center for Reproductive Law and Policy, which is representing Whole Women’s Health, the chain of clinics challenging the Texas regulations.

THOMSON REUTERS FOUNDATION: It seems the issues being addressed in the Texas case come out of the Casey case, that the regulations are an undue burden.

KOLBERT: The main issue in the case is how the undue burden standard will be interpreted going forward.

The whole question comes down to Justice Kennedy and how he sees that standard, and he frankly is much more in the middle.

Does he come back to what he articulated in Casey, or is he pushed a little bit to the right with the influence of the other justices? For me, the biggest concern is Justice O’Connor, who he clearly listened to, is no longer on the court.

TRF: What do you think in essence underlies the abortion issue?

KOLBERT: It’s an issue that ties together the coalitions on the right, the fundamentalists, the Catholics, the people who basically are business conservatives.

It’s about power. It’s about equality. There’s a lot of pushback in America still about giving women the ability to go beyond what they are, their life as a wife and mother, which is the culturally dominant view.

TRF: TRAP laws are often hard to explain because they seem so benign.

KOLBERT: That’s a strategy. Those who are writing these restrictions are looking for things that sound reasonable but in practice are incredibly problematic for women, particularly those who have less political power. So young women and poor women are the first that are going to be affected negatively.

If you look at every restriction that’s been introduced since 1973, they are all under the guise of reasonableness.

TRF: Texas is the case being tested. Is it safe to say there are similar situations in other states?

KOLBERT: All over the country, yes. Frankly, if this is upheld the same statute will be enacted in 25 states within three years. That’s what makes it so dangerous.

TRF: What are the possibilities of what the Supreme Court could do?

KOLBERT: Remember the court has got only eight justices right now, so the option is really one of three.

We win five to three, which means that we have (Justice Elena) Kagan, (Justice Stephen) Breyer, (Justice Sonia) Sotomayor, (Justice Ruth) Ginsberg and Kennedy.... Kennedy wrote Casey, so that’s a reasonable assumption.

The second possibility is that the court would not make a decision right now and would send the case back for taking of additional evidence ... which is what I think of as looking for an out.

They could remand the case for a determination of whether or not there are a sufficient number of clinics within the state to handle the excess capacity of women needing abortions that would happen when you close so many clinics.

So we could win, there could be an ‘out’ or we could lose. If the court divided four-four..., then the lower court decision would be upheld.

That would be interpreted as a major win for the anti-abortion groups, and we would see laws like this in every state in the country.

TRF: If you had to put your money on any of those three options, which one do you see more likely?

KOLBERT: I certainly hope that we can keep Justice Kennedy. If not, then I think they’ll send it back for more evidence.

TRF: What’s it like to argue a case before the Supreme Court?

KOLBERT: It’s pretty awesome, it’s scary. For me though it was all about the women we were representing. It’s the doctors and the clinics, the providers who do the hard work, who meet with women facing unintended pregnancies every single day.

It was being able to be a spokesperson for them and to explain their plight and explain what they’re going through that was the most gratifying part of the job.