The landmark Texas case set to fuel the abortion debate in America

Austin: As the US Supreme Court prepares to hear its first abortion case in nearly a decade, both sides have been quietly gathering vivid accounts from women to supplement their dry legal arguments, believing the personal touch could appeal to swing-vote Justice Anthony Kennedy.

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The case, which arises from a challenge to new Texas regulations covering clinics and the doctors who perform abortions, could lead to other states imposing regulations affecting access to abortion.

The ruling – expected by late June – could have broad political repercussions in a presidential election year.

Planned Parenthood supporters attend a September rally in Los Angeles to campaign for access to reproductive health care.
Planned Parenthood supporters attend a September rally in Los Angeles to campaign for access to reproductive health care. Photo: AP

Some opponents of abortion are seizing on past comments by Justice Kennedy, who has said that some women come to "regret" the procedure and, while affirming a right to abortion, has voted for certain regulations governing the procedure. Seeking to bolster the argument for Texas's strict requirements, they are signing up women who say they suffered medical complications.

The group of health clinics challenging the state, meanwhile, is trying to counter any perception of abortion as an option used only by the young and inexperienced.


Taking a page from the successful approach of gay-marriage proponents, they have sought lawyers and other professional women who say abortions helped them for economic, medical or other reasons. They hope the vignettes from lawyers will help justices identify with their view.

The diverging experiences will emerge in "friend of the court" briefs – the clinics' set is due this week, the Texas state government's set is due on February 3.

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Democratic presidential candidate Hillary Clinton has described Republican opponents as "terrorist groups" when it comes to women's issues. With the split between Democrats and Republicans deeper than ever over abortion, the issue is set to become a volatile topic during the 2016 campaign.  Photo: AP

The briefs are compiled to represent the broader outside interests at stake in a case, and are rarely so devoted to personal narratives.

The disputed Texas law requires clinics that perform abortions to have hospital-grade facilities and clinic doctors to obtain admitting privileges at a local hospital.

The clinics challenging the regulations as an unconstitutional burden on women say Texas is using costly, needless requirements to shut down facilities and restrict access to the procedure. Texas counters that it is safeguarding women's health.

The Centre for Reproductive Rights (CRR), a New York-based non-profit group, is representing the clinics in the case, entitled Whole Woman's Health v. Cole.

Texas's legal strategy is being coordinated in Austin by state Solicitor General Scott Keller, who worked as a law clerk to Justice Kennedy in 2009-2010.

Personal narratives

For months CRR lawyers have been reaching out for personal testimonies through emails and phone calls, according to women who have been contacted in Texas and elsewhere.

Former Democratic Texas state senator Wendy Davis, who led a filibuster against the abortion legislation in 2013 and revealed her two abortions in a memoir a year later, said she was asked in August to join a brief of public officials. She agreed.

Senator Davis terminated two pregnancies in the 1990s for medical reasons.

"Did I grieve tremendously? Yes, I did, in an indescribable way," she said in an interview with Reuters. "But never did I regret it."

Heather Busby, director of NARAL Pro-Choice Texas in Austin, provided her story for a brief to be filed on behalf of lawyers who had abortions. She said she often wonders whether she would have finished college and gone to law school if she had not ended an unwanted pregnancy at age 22, two decades ago.

Among those preparing briefs to support Texas is lawyer Allan Parker of the San Antonio-based Justice Foundation, which runs an 'Operation Outcry' website asking women to sign declarations labelled "How My Abortion Hurt Me."

Parker said many women will not be fully identified in the filing, such as a Cindy H., who lived in Texas and now resides in Washington state.

She told Reuters her uterus was punctured during an abortion in the 1990s in a Texas clinic and she began hemorrhaging. "I thought I could have bled to death," she said.

Separately, Cindy Collins, an outspoken anti-abortion advocate in Louisiana, said she will be lending her full name to that brief about the harms of abortion.

Disputes over abortion rights, like gay marriage, have come down to Justice Kennedy, a 1988 appointee of Republican President Ronald Reagan and the judge who tipped the balance to the liberal side in gay marriage disputes in 2013 and 2015, notably in last June's landmark ruling for a nationwide right to same-sex marriage.

Over a series of decisions, Justice Kennedy moved consistently toward greater protection for gay men and lesbians. On abortion rights, his record has not been as predictable.

Based on their records, the current four conservatives are likely to favour the Texas law; the four liberals are likely to reject it, again leaving Justice Kennedy with the 'balance of power'.

The last time the Supreme Court heard an abortion case, in 2007, he cited a friend of the court brief from women who said they regretted going through with the procedure.

"While we find no reliable data to measure the phenomenon," Justice Kennedy wrote, "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."