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.