All eyes on Kennedy for abortion ruling

FORT WORTH - Behind double-locked doors, beyond a waiting room named for Michelle Obama, past walls painted in signature purple hues called Enigma and Intuitive, the women who work at this abortion clinic await word from a man in Washington about whether a Texas law will force it to close.

Outside a Starbucks miles away, an administrative assistant would like that same man, Justice Anthony Kennedy, to know that the law already has so reduced the number of providers in Texas that she took out a payday loan and flew to California for the abortion she had trouble scheduling in her state.

And in the red granite Capitol in Austin, officials are also looking to Kennedy but want him to consider an alternative narrative about the law, which imposes new requirements on doctors and requires that even early abortions be performed in surgical centers.

These officials say the act arose out of concern for the health of women who choose the procedure and fits perfectly within the judicial compromise Kennedy helped draft 24 years ago reaffirming a woman's right to abortion but recognizing the state's interest in protecting potential life.

The Supreme Court's most important abortion case in decades, being heard on Wednesday, is pitched to an audience of one.

Justice Antonin Scalia's unexpected death complicates the impact of the court's eventual decision. But if the challengers are able to convince Kennedy that the Texas law goes too far, this will have national implications. States have passed more than 250 restrictions on abortion in the last five years.

Kennedy, 79, is hardly the rescuer that abortion-rights supporters would wish for. In his nearly three decades on the court, he has upheld every abortion restriction he has ever considered except one. The exception was a Pennsylvania law that required pregnant women to notify their husbands before seeking an abortion.

He is the remaining justice of the trio who in 1992 set the current test for when abortion restrictions go too far. In Planned Parenthood v. Casey, Kennedy and Justices Sandra Day O'Connor and David H. Souter upheld the basic framework of Roe v. Wade, finding that a woman's right to an abortion is protected by the Constitution.

It also recognized that states have an interest in protecting potential life but that restrictions could not impose an "undue burden" on a woman's right to an abortion before fetal viability.

"Justice Kennedy's the only path to victory for the clinics," said David Cohen, a law professor at Drexel University who has written about the abortion-rights movement. The calculation assumes that the court's four liberals - Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan - will agree with abortion providers that Texas' law is too onerous.

Texas argues that its 2013 law was a logical response to the shocking indictment of Philadelphia abortion provider Kermit Gosnell, who was convicted that year of first-degree murder in the deaths of three infants born alive and involuntary manslaughter in the death of a woman undergoing the procedure in his underregulated clinic.

The state's restrictions were meant to ensure the safety of patients, Texas told the Supreme Court, and fit within Kennedy's opinion in Casey that "states may regulate abortion, so long as the regulations have a rational basis and do not have the purpose or effect of creating a substantial obstacle to abortion access."

One of the Texas provisions being challenged requires abortion clinics to meet the standards of ambulatory surgical centers. It was one of the recommendations of the grand jury that indicted Gosnell. The other provision in question requires doctors to obtain admitting privileges at local hospitals, in case of emergency.

The National Right to Life Committee urges the Supreme Court not to take on the role of "the nation's medical board."

Abortion-rights supporters say the court has an obligation to decide whether the regulations are defensible or simply a pretext for making it harder to access abortion.