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Abortion Is Back Before SCOTUS, Planned Parenthood Isn't

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By Casey C. Sullivan, Esq. on November 17, 2015 10:59 AM

As of Friday, abortion is back before the Supreme Court for the first time in years, after the Court granted cert to review Texas's restrictive abortion law. (You remember, the one that led Wendy Davis to hold a 13-hour filibuster two years ago, then passed shortly after.) Then on Monday, it rejected a request to publicly release Planned Parenthood documents under the Freedom of Information Act -- leading to a rare dissent to the denial of cert.

Add in the Obamacare contraception cases, the Court agreed to review it two weeks ago and it's quickly becoming the Year of the Uterus in the Supreme Court. Here's what's happening in the nation's highest judicial body and how it could affect yours.

A Challenge to Texas's Abortion Restrictions

Texas is leading the charge in a novel new attack on abortion rights. In 2013, the state adopted some of the most burdensome requirements on abortion providers in the nation. Under the law, clinics providing abortions must have hospital-grade facilities and physicians must have admitting privileges at nearby hospitals. Those restrictions are difficult to meet -- impossible for many clinics -- and are expected to leave very few abortion providers remaining in the large state.

The focus on clinics is a shift from past approaches to abortion restriction. Unlike failed laws in Idaho and Arkansas, which focused on the length of a woman's pregnancy, Texas places the burden on abortion providers instead of directly on women.

Changes to Casey in Store?

The Fifth Circuit upheld the law in June, finding that the requirements didn't unduly burden women under Planned Parenthood v. Casey. As the Fifth noted, the Supreme Court has already upheld a Montana restriction on who can perform abortions -- only physicians -- despite lack of medical evidence supporting the requirement.

Should the Supreme Court agree, you can expect the Texas model to be adopted by many right-leaning states, making it particularly difficult for rural and poor women to access abortion services. Some pundits, such as Forbes' Michael Bobelian, are already suggesting that the Court's conservative wing will use the opportunity to rework Casey "in a way that's more favorable to legislative restrictions of abortion rights."

But, it might not be the conservatives who brought the challenge before the Court. In a dissent from a denied stay to the law last year, Justices Breyer, Ginsburg, Sotomayor, and Kagan all stated that the court should review the underlying constitutional issues. They'll now have their chance.

No FOIA Battle Over Planned Parenthood

Speaking of cert petitions, just one work day after granting the Texas challenge, the Court refused to hear an appeal over Planned Parenthood documents. New Hampshire Right to Life sought to obtain documents the women's health group had submitted to the federal government in support of a grant. Those files included such things as fee schedules and facilities requirements -- they were hardly the Roswell Files. Still, Health and Human Services refused to release the files when New Hampshire Right to Life filed a Freedom of Information Act request, under Exemption 4, which protects trade secrets submitted to the government.

Justice Thomas, joined by Justice Scalia, dissented from the denial. Dissents from a denial of cert are relatively rare. They're typically used to announce the leanings of a Justice. Judge Blackmun renounced capital punishment two decades ago in a dissent from a cert denial, for example. Alternatively, they may warn lower courts to halt a practice that the Supreme Court did not decide to review -- yet.

The Justices dissent here was the later -- both Thomas and Scalia have made their opposition to abortion services abundantly clear -- decrying the First Circuit's expansive reading of FOIA exemptions.

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