On Wednesday there was only one issue before the Supreme Court–Whole Woman’s Health v. Hellerstedt, the first major case on abortion to reach the highest court in nearly a decade. As most everyone predicted, the court appeared evenly divided with Justice Anthony M. Kennedy asking difficult questions to both sides.
Law reporter Lyle Dennison, who was in the courtroom today, shared what he thinks are a few clues into how Justice Kennedy will rule in SCOTUS Blog.
In an intense argument in Whole Woman’s Health v. Hellerstedt that ran twenty-six minutes longer than scheduled, Kennedy seemed poised to find a way out of a four-to-four split — if the initial vote comes to that — or to strike down by a narrow vote the two restrictions at issue in the 2013 Texas law, known as “HB2.”
In the Whole Woman’s Health v. Hellerstedt hearing, the Court considered a Texas law passed in 2013, HB 2. The law has two provisions, one which requires that doctors have admitting privileges in a hospital 30 miles away or less from their abortion facility. The other requires abortion clinics to meet the same operating standards as ambulatory surgical centers.
The case could force the Supreme Court to reexamine a landmark 1992 decision in Planned Parenthood v. Casey, one that said state laws should not place an “undue burden” on women seeking abortion and could not present them with “substantial obstacles.”
After the death of Antonin Scalia, the Court’s biggest abortion opponent, a 4-4 ruling would keep the Texas law in place. If Kennedy rules along with the four justices who support reproductive rights, a national precedent will be set that would forbid stringent restrictions on abortion providers such as these.
Stephanie Toti, left, a lawyer for the Center for Reproductive Rights, and Scott Keller, the Texas solicitor general, argued an abortion case before the Supreme Court on Wednesday. (Credit Jared Soares for The New York Times)
Both sides of the case were presented by lawyers in their 30s. Texas solicitor general Scott Keller, 34, had argued in front of the Supreme Court before from his position that was once held by Ted Cruz. Stephanie Todi, 37, a lawyer for the Center for Reproductive Rights in New York represented Texas abortion providers. This was her first time speaking to the Supreme Court.
Before the arguments were heard a huge crowd had gathered on the sidewalk outside of the Supreme Court building. Some even lined up as early as Tuesday night for a chance to witness one of the most significant and divisive cases the Supreme Court will hear this year. Signs could be seen from protesters overflowing the sidewalks ranging from “Abortion on Demand and Without Apology” to “Protect Women Protect Life.”
— Whole Woman's Health (@WholeWomans) March 2, 2016
As Denniston wrote in SCOTUS Blog:
It did not take Kennedy but a moment to join in the argument Wednesday. He was one of those questioning the perceived failure of the challengers to the Texas law to have put in the record of the case specific evidence of why more than half the clinics in Texas existing before HB2 was passed had closed. The challengers insist that some did so in anticipation of not being able to comply, and others closed on the day that the law went into effect. But several members of the Court were puzzled by what they deemed an inadequate record on that point.
The Court reportedly got hung up on the issue of whether or not there was evidence supporting Todi’s assertion that Texas will only have ten abortion clinics remaining if HB2 stays in place. Justices Roberts and Alito pressed Todi to explain how she knows that the clinics closed in Texas since 2013 did not close for independent reasons.
Kennedy then changed the course of the discussion by raising the possibility that HB2 be sent to the lower courts for lawyers to weigh the evidence about whether Texas clinics could meet capacity.
U.S. Solicitor General Donald B. Verrilli Jr., representing the Obama administration, weighed in on the issue:
“This law closes most abortion facilities in the state, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state. And it does all of that on the basis of a medical justification that cannot withstand any meaningful scrutiny.”
Verrilli questioned whether a woman’s right to an abortion would “only really exist in theory and not in fact” if access could be this limited.
Verrilli seemed to score points with Kennedy when he said the remaining clinics that met the ambulatory surgical requirements — already required in Texas for second-trimester abortions — could not meet the demand.
There are about 65,000 to 70,000 abortions in Texas each year, Verrilli said, and clinics that meet the standards perform about 14,000 per year.
“20 Percent,” Justice Kennedy responded. This may hint that he is aware of the scope of HB2’s damage.
Justice Kagan added that 750,000 women would live more than 200 miles away from an abortion clinic; whereas that number was 10,000 before the law was passed.
The LA Times reported that the three female justices took the lead roles in the discussion, arguing that the Texas bill singles out abortion and forces restrictions on it that are not usual for any other medical procedure in a way that hurts women instead of protecting them. Justices Sotomayor and Kagan argued that dental procedures and colonoscopies offer more risk and do not need special hospital admitting privileges.
Justice Ruth Bader Ginsburg noted that one provision requires women to visit an outpatient surgical center even when they are simply taking a pill to induce a medical abortion. Many women would have to travel hundreds of miles to get there, Ginsburg said.
“I can’t imagine what is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved,” she said. “Even if a complication arises, it will be after the woman is back home.”
Kennedy made a comment on the health issues the closure of abortion clinics presents, adding that he it is “not medically wise,” for waiting periods to be so high that women are unable to receive medical abortions in the form of pills and would be forced to have surgical abortion as their only option.
When Keller claimed that it was enough that the four major metropolitan areas of Texas would still have operational abortion clinics, Justice Ginsberg offered the strongest arguments in opposition.
“How many women are located over 100 miles from the nearest clinic?” Ginsburg pressed.
When Keller conceded there were women in that category, he added some could access a clinic in New Mexico, Ginsburg pounced.
She pointed out that the New Mexico facility has neither the admitting privileges provision nor the requirement to upgrade the abortion clinics outlined in the Texas law.
“If your argument is right, then New Mexico is not an available way out,” she said.
Justice Breyer asked Keller to report an instance where a woman was turned away from a hospital with a complication from abortion because the doctor did not have admitting privileges, making the point that admitting privileges are no medical necessity because women are admitted for treatment regardless of any special privileges.
Keller was not able to name a single instance.
The eight justices will meet privately to discuss this case on Friday. A decision is expected to follow in June.