Wisconsin Case Gives SCOTUS Second Shot at Abortion

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By Kimberly Strawbridge Robinson

June 22 — The U.S. Supreme Court on June 23 will consider a petition that could clarify how states can regulate abortion—should the justices be unable to agree on that issue this term ( Schimel v. Planned Parenthood of Wis., 84 U.S.L.W. 3548, U.S., No. 15-1200, petition filed 3/22/16 ).

Among the handful of remaining cases this term that could go undecided as a result of the current eight-member court is a closely-watched challenge to Texas's recent abortion regulations, Whole Woman's Health v. Hellerstedt, U.S., No. 15-274, argued 3/2/16 . The court has been short-handed since Justice Antonin Scalia unexpectedly passed away Feb. 13.

Oral argument in Whole Woman's Health suggested that the justices could be evenly divided (84 U.S.L.W. 1253, 3/3/16). In that case, the appeals court decision below, largely upholding Texas's regulations, would stand.

But even if the justices split 4-4 in Whole Woman's Health, they could reconsider the issue as early as next term.

In particular, Wisconsin has asked the court to review a lower court decision striking down its newly enacted abortion regulations.

Both Whole Woman's Health and Schimel give the high court the opportunity “to refine and explain the ‘undue burden' standard that it announced in [ Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)] and provide more and better guidance to the lower courts in how to evaluate state abortion laws that are designed and intended to protect maternal health,” Denise Burke, of the anti-abortion group Americans United for Life, Washington, told Bloomberg BNA in a June 15 e-mail.

Under the undue burden standard, a state regulation that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” is invalid, the court said in Casey.

Similar Law, Different Result

Kelli Garcia of the pro-abortion National Women's Law Center, Washington, agreed.

Whole Woman's Health is the first time the high court has considered the “undue burden” standard since the court's 2007's decision in Gonzales v. Carhart, 550 U.S. 124 (2007), which applied the standard to uphold a federal ban on a partial-birth abortion, she told Bloomberg BNA June 16. Schimel could provide the justices with another opportunity to clarify that standard, if the justices can't agree this term, she said.

Both cases deal with so-called admitting privileges requirements, requiring abortion doctors to get admitting privileges at nearby hospitals.

The states say the laws are intended to increase the safety of abortion, but challengers say its a thinly-veiled attempt to limited access to abortion.

While the laws are substantially similar, the U.S. Courts of Appeals for the Fifth and Seventh circuits came to different conclusions about their validity.

In Whole Woman's Health v. Cole, 790 F.3d 563 (5th Cir. 2015), the Fifth Circuit upheld the law generally as a permissible health and safety regulation. The court did, however, prohibit its application as to specific clinics.

But in Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908 (7th Cir. 2015), the Seventh Circuit struck down the law as it applied to everyone in the state.

By limiting the admitting privileges requirement to “a medical procedure—abortion—that rarely produces a medical emergency,” the proponents of the Wisconsin law “reveal their true objectives”—namely, restricting access to abortion, the Seventh Circuit said.

Apples and Oranges

But Burke noted that there are differences between the two cases.

In addition to the admitting privileges requirement, Whole Woman's Health also involves a regulation requiring abortion clinics to comply with the same standards as outpatient surgical centers, known as “ambulatory surgical centers,” Burke said.

“So, comparing these cases is a lot like comparing apples and oranges,” she said.

Still, she acknowledged that Schimel could still provide clarity in a now-cloudy area of the law if the justices can't do it in Whole Woman's Health.

With the current term set to end on June 27, the justices likely already know how they will come out in Whole Woman's Health.

If the justices are deadlocked, they could decide to hold that case over until they are up to full strength. Or they could issue a 4–4 decision in Whole Woman's Health and grant the Schimel petition.

The justices are set to consider whether to take up Schimel at their private conference on June 23.

Bloomberg Philanthropies provides financial support for Planned Parenthood.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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