Oral arguments in the major Supreme Court case against Texas’ abortion clinic law revealed some unsettling information about the risks of liposuction and colonoscopies, but very little about the leaning of Justice Anthony Kennedy. He will likely cast the deciding vote in the case, Whole Woman’s Health v. Hellerstedt, which challenges regulations in a 2013 Texas law that the state’s abortion clinics say are medically unnecessary and will shutter all but 10. At issue is whether the law, which requires clinics to meet standards set for surgical centers and bars doctors from providing abortions unless they have admitting privileges at local hospitals, puts an “undue burden” on a woman’s right to terminate a pregnancy.
The death of Justice Antonin Scalia has lowered the stakes minutely, but Kennedy’s position is still critical: If the court splits 4–4, the Texas law stands, though the decision won’t set a precedent for the rest of the country. The clinics are hoping he’ll join the court’s four liberal justices in deeming the regulations unconstitutional. Kennedy spoke infrequently during the arguments Wednesday morning, interjecting small points that gave little sense of a broader inclination. He has a mottled record where abortion is concerned: Last year, he voted to stay the Texas regulations until the court ruled, and in 1992’s Casey v. Planned Parenthood, he passed up an opportunity to overturn Roe v. Wade, yet he has supported other abortion restrictions that have found their way to the Supreme Court since.
Kennedy did indicate openness to the argument that Texas’ law (known as HB 2) may actually make abortion less safe, by forcing women to delay the procedure until later in pregnancy. Specifically, he expressed concern that the rate of surgical abortions was increasing in Texas compared with abortions induced by pill, which “may not be medically wise.” But Kennedy also suggested the case could be sent back to the lower courts, in order to determine whether the facilities that would remain open in Texas if the law were upheld have the capacity to meet demand. Remanding the case would effectively kick the can down the road until Scalia’s replacement has been confirmed.
The action bounced between Justice Samuel Alito and Chief Justice John Roberts, who focused on procedural details and what they claimed was a lack of evidence to support the clinics’ case, and the court’s four Democrat-appointed justices, who tore into Texas’ claim that the abortion regulations served the interest of health and safety. Texas was represented by state Solicitor General Scott Keller, the clinics by Center for Reproductive Rights attorney Stephanie Toti, with support from US Solicitor General Donald Verrilli.
Alito expressed skepticism that Texas’ law is what has caused more than half of the state’s abortion clinics to close. Might they have shut down for other reasons? he asked, suggesting that a 2011 law that cut funding for women’s health programs might have been responsible for some closures. He also pointed out that a few new clinics that meet the ambulatory surgical center requirements have opened since the law passed.
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Toti, who was arguing her first case before the court, pointed to the timing of the clinic closures as evidence that HB 2 was the cause. While the number of clinics in Texas had been relatively stable, she testified, 11 clinics went out of business suddenly once the admitting privileges requirement took effect. Over a dozen other facilities closed during a two-week period in which the ambulatory surgical center requirement was in effect, before the court issued a stay, and then they reopened. “It’s almost like the perfect controlled experiment, as to the effect of the law, isn’t it?” Justice Elena Kagan remarked. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”
Justices Sonia Sotomayor and Ruth Bader Ginsburg both addressed the absurdity of requiring that women visit a facility outfitted for surgery in order to be able to take two pills. “What is the benefit?” Ginsburg wanted to know. Keller said it was in case of complications, to which Ginsburg pointed out: Complications are most likely to occur after a woman has left the clinic and is at home. The requirement that abortion providers have admitting privileges at hospitals within 30 miles looks equally ridiculous in that light, Ginsburg continued. “You need to have access to a hospital within 30 miles. Thirty miles of what? Thirty miles of the surgical center when the woman lives at a much greater distance?”
Justice Stephen Breyer noted that before Texas required doctors to have admitting privileges, clinics had to have a working arrangement with hospitals. He asked Keller to provide some evidence of a woman who had complications from an abortion procedure and was unable to get into a hospital because her provider lacked admitting privileges; Keller was unable to point to a single instance. “So what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation?” Breyer asked. There was laughter from the court, but still no answer from Keller.
Breyer, Kagan, Sotomayor, and Ginsburg continued to hammer the state’s assertion that legislators were “act[ing] to improve abortion safety,” as Keller put it in his opening sentence. Liposuction is nearly 30 times more dangerous than abortion, Kagan said; why doesn’t the state require that procedure to occur in a surgical center? People die from complications related to aspirin, Sotomayor pointed out, but we don’t require people to take aspirin in a special facility. Breyer wondered if, as the number of clinics shrinks and women have to travel further to end a pregnancy, “are there going to be more women or fewer women who die of complications due to an effort to create an abortion?”
All of that led to the simple but telling question Kagan asked Keller near the end of the arguments. “You said that as the law is now, under your interpretation of it, Texas is allowed to set much, much higher medical standards…for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work,” she said. “I guess I just want to know, why would Texas do that?” Keller offered up the familiar antichoice bogeyman Kermit Gosnell as a reason. But Texas has an inspection system, Kagan replied, so if state officials are doing their jobs, lawbreakers like Gosnell will be shut down anyway. Keller finally settled on the explanation that Texas singled out abortion clinics for special regulation because the legislature was reacting to a topic that was of “public concern.”
Keller’s overarching argument was that abortion remains “legal and accessible in Texas,” because most Texas women still live within 150 miles of an abortion clinic. But Ginsburg reminded the court that the “focus must be on the [women] who are burdened and not the ones who aren’t burdened.” The proper question is whether the former’s fundamental right to choose is infringed. And that’s the heart of the clinics’ argument, as articulated by Verrilli: For those women who are affected, upholding the law would mean their “right really only exists in theory, and not in fact going forward.”
