WASHINGTON — The Supreme Court heard oral arguments on Wednesday in Whole Woman's Health v. Hellerstedt, the biggest abortion rights case the Court has heard in decades.
The case will turn on whether the Court agrees that two Texas anti-abortion laws place an "undue burden" on Texas women by closing abortion clinics, forcing many women to travel great distances and endure longer wait times to get the procedure.
The two laws were passed in 2013 as part of HB2, an omnibus anti-abortion bill. They require abortion clinics to undergo expensive renovations to become ambulatory surgical centers (ASCs), and require doctors providing abortions to get admitting privileges with a local hospital — which hospitals aren't required to grant, and often don't.
I was in the courtroom for the hearing, and left unsure of what the Court will do — but got some hints of what its reasoning will be either way.
Justice Samuel Alito, who will almost certainly vote to keep the law intact, was aggressively skeptical about the plaintiffs' evidence that Texas's laws directly caused clinics to close. Chief Justice John Roberts also seemed skeptical, and asked some questions about procedural issues.
Liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer all had fairly aggressive lines of questioning for Texas Solicitor General Scott Keller, who defended the laws.
Justice Anthony Kennedy, the likely swing vote, didn't ask very many questions or (from what I could see peeking around a huge marble column) give away much in his reactions. The questions he did ask weren't overly loaded.
If Kennedy votes with the Court's four liberals to overturn Texas's laws, it could loosen abortion restrictions nationwide. If he votes with the three remaining conservatives (following the death of Antonin Scalia), the Texas laws will stand. That wouldn't set any nationwide precedent but would severely restrict abortion access for Texas women and possibly encourage other states to pass similar laws. It's also possible that the Supreme Court will send the case back to a lower court for more fact finding.
Here's a breakdown of the most interesting exchanges and important issues that came up during the hearing.
The liberal justices did a good job of making the Texas laws sound ridiculous
Texas's Scott Keller started sounding like a broken record under pointed questions from the three women justices about why Texas passed these laws in the first place.
Why pass the laws? Because, Keller argued, abortion has complications. But why single out abortion for regulations when it's much safer than other procedures that don't have these regulations, justices asked? Because ... abortion has complications. (Keller eventually added that "legislators react to topics of public concern.")
Ginsburg pointed out that abortion has lower complication rates than childbirth. Keller said he has testimony disputing that. (He cited briefs from two pro-life activist groups.) Ginsburg got a big laugh after her skeptical reply: "Is there really any dispute that childbirth is a much riskier procedure than an early-stage abortion?"
"There are people who die of complications from aspirin," Kagan said later.
Medication abortion does have higher complication rates than surgical abortion, Ginsburg said, but forcing women to take the pills in a surgical center won't help. Most complications like bleeding or cramping happen hours later, when the woman is at home. And if she has to go to the hospital, she will go to the one closest to her home — not the hospital her doctor has admitting privileges at.
Then Keller brought up rogue abortion provider Kermit Gosnell, who was convicted of murdering women and newborns. That didn't go over well, either. Kagan pointed out that Gosnell only happened because the state of Pennsylvania went 16 years without inspecting his clinic. Texas, on the other hand, conducts continual random inspections.
When Ginsburg asked Keller how many Texas women of reproductive age would live more than 100 miles away from an abortion clinic, he said 25 percent of them would. But, he said, that number would be lower once you include a clinic in McAllen and one in El Paso. Except the "El Paso" clinic Keller cited is actually across the border in New Mexico.
"That's odd that you point to the New Mexico facility," Ginsburg said. New Mexico doesn't have the ASC or admitting privileges requirements that Texas insists are needed to protect women's health and safety. "If that's all right for the women in the El Paso area, why isn't it right for the rest of the women in Texas?" Ginsburg asked.
And as Sotomayor pointed out later, the McAllen clinic Keller mentioned would only have one doctor, who is near retirement, doing the work that was previously done by four doctors. That's because a lower court only allowed that one doctor an exception to the admitting privileges requirement.
Sotomayor said that doctor would effectively be an "indentured slave."
Breyer pointed out that before the new admitting privileges law was passed, there was already a law requiring clinics, not doctors, to have agreement with a hospital. Forcing doctors to be the ones to get an agreement has made those agreements harder to get, with no clear benefit.
Which women, Breyer asked, could get to a hospital under the new law who couldn't have under the old law? "On what page does it tell me their names, what the complications were, and why that happened?"
"Justice Breyer, that is not in the record," Keller admitted.
Exchanges like these might make it difficult for the conservative justices to rule with a straight face that Texas had a legitimate interest in protecting women's health when it passed HB2.
And it will give liberals ammunition to argue that the laws were a solution in search of a problem, with no medical benefit that can offset the large burden they place on women.
But it may not matter how ridiculous the laws are
For the plaintiffs, Center for Reproductive Rights lawyer Stephanie Toti argued that when the Court decides whether the laws are an "undue burden," it has to consider the "balance" between the state's interest in regulating abortion and the woman's right to access it. That's the balance struck by 1992's Planned Parenthood v. Casey, which upheld Roe v. Wade but allowed some restrictions on abortion.
Toti argued that Texas's laws throw off that balance. If it's obvious that Texas had no good reason to regulate abortion in the way it did, or that the laws don't actually serve the state's interest in the way they are supposed to, then the laws can't stand under Casey.
The state of Texas, on the other hand, says that where there is medical and scientific "uncertainty," precedent dictates that states have wide discretion in regulating abortions. It doesn't matter that the American Medical Association and other groups say these laws have no medical benefit. If a few experts claim they do, and if the state can say it was trying to improve women's health and safety, that's all that matters.
When Keller argued that states are allowed to treat abortion differently from other medical procedures, Kagan countered: "I guess I just want to know why would Texas do that?"
That got a laugh, but it also raised a key question. If Texas singled out abortion for "safety regulations" because it wants to regulate the procedure out of existence, and not actually for safety reasons, that could contradict Casey.
And Kagan asked what are the limits of what a legislature can do. She offered a hypothetical example: Say you have evidence that Massachusetts General Hospital has great health outcomes. Would it be reasonable for a state to require all abortion clinics to adopt all the standards of MGH?
"Well, there would have to be medical evidence," Keller said. "It is at a minimum disputed."
Another key question is what counts as a "large fraction" of those unduly burdened by the law. The courts haven't been consistent on this — do you count all women in Texas of reproductive age, or just all women who have to drive more than 150 miles to get an abortion?
Keller said that in Casey, the Court upheld waiting periods even though 40 percent of Pennsylvania women would have to travel at least an hour for two appointments that are 24 hours apart.
But when Casey struck down spousal notification laws, Ginsburg noted, it only considered the married women who might want to keep their abortion a secret from their husbands — not all women seeking abortion. And it found that a lot of women with abusive husbands would be substantially burdened.
Sotomayor asked if the "slightest health improvement" was really enough to "burden the lives" of a million women.
Again, it comes down to whether and how the state's motives to improve health and safety are weighed against the burdens placed on women.
Conservative justices were skeptical of the plaintiff's evidence
Alito in particular, and Roberts to some extent, didn't seem convinced that HB2 was directly responsible for all of the clinic closures. They also looked for evidence that the remaining open clinics would be able to handle demand and thus not be burdened.
Alito grilled Toti on how many clinics she had "direct evidence" were closed specifically because of HB2. Toti said she had direct evidence of 12 clinics closing due to HB2, and that eight others closed before HB2 passed because they anticipated being closed later.
Alito said that this was a small number of facilities, and asked why there wasn't evidence for each individual one in the record. Toti said she could provide it.
Toti pointed out that before HB2 passed, the number of clinic closures in the state had been relatively "stable" — one or two a year, maybe. But after HB2 passed, eight clinics closed immediately, followed by the other dozen after the law was implemented.
Now there are just 19 clinics open, down from 44 five years ago, and Texas would be down to about nine ambulatory surgical centers if HB2 stands. The numbers alone, Toti argued, make a powerful case.
Kagan said that the law was "almost like the perfect controlled experiment," because two weeks after the law went into effect, clinics closed their doors. But when the law was blocked, those same clinics reopened.
There was also some argument about whether the nine remaining ASCs would be able to meet the demand for roughly 65,000 to 70,000 abortions per year in the state of Texas.
Conservative justices said the ASCs could rise to meet the demand, pointing to one Houston ASC that performed 9,000 abortions per year and a single doctor in Louisiana who performed 3,000 a year.
The plaintiffs said there was no way. US Solicitor General Donald Verrilli pointed to research that found Texas ASCs performed just 14,000 abortions after the law went into effect.
Providers would have to increase their capacity four- or fivefold to meet demand. The idea that this would be possible violates "common sense," Verrilli said.
What all of this could mean for the decision
The liberal justices will probably argue that, as Verrilli put it, the burdens of Texas's laws are "stronger than anything the Court has countenanced."
They will probably note that, as Kagan mentioned, 750,000 Texas women will live more than 200 miles from an abortion clinic if HB2 is upheld — whereas in 2012, just 10,000 did.
They will probably say that the laws don't pass the "undue burden" test in the 1992 Planned Parenthood v. Casey decision, which says that a state can't pass "medically unnecessary" regulations designed to place a "substantial obstacle" in a woman's path.
But the conservative justices may also point to Casey, as Keller did, and argue that long driving distances don't necessarily constitute an "undue burden."
They may ignore whether Texas had any "rational basis" to pass the laws, or say that it's up to the legislature and not the courts to evaluate the evidence on such "controversial" medical issues.
They may also reject the premise that HB2 caused clinics to close en masse, or that other clinics can't reasonably take up the slack.
And it's really hard to say, based on the oral arguments, which side Kennedy will take. He did vote to uphold Roe in Casey, but he's also voted against the pro-choice side more often than for it.
Like the conservatives, he asked questions about the clinics' capacity. Like the liberals, he asked questions about the laws' medical impact (specifically on medication abortion), and about balancing the state's interest with the burden on women.
But they were really just questions, and it's not at all clear what he thinks about the answers.