The Supreme Court justices appear split along ideological lines over whether two Texas abortion regulations unconstitutionally restrict women’s access to the procedure.
During oral arguments March 2 in Whole Woman’s Health v. Hellerstedt, justices expressed differing viewpoints on a Texas law that requires abortion providers to have admitting privileges at a hospital within 30 miles and another rule that requires abortion clinics to meet the same standards as those of ambulatory surgical centers (ASCs). Justices also seemed to disagree about whether enough evidence exists to prove the closure of more than 20 abortion clinics in the state is directly related to the Texas legislation, HB2.
“I think it was pretty clear the four [more liberal] justices would vote to strike down this law,” said Gretchen Borchelt , an attorney for the National Women’s Law Center (NWLC) who attended oral arguments. “They made it pretty clear that they don’t think there’s any evidence that the law is necessary. It’s less clear where the other justices line up. With abortion cases, it’s often a [split] decision and [Associate Justice Anthony] Kennedy has been the swing vote in the past.”
From Justice Kennedy’s line of questioning during the debate, it was difficult to tell which direction he was leaning, said Ms. Borchelt, who is NWLC vice president for health and reproductive rights. The NWLC issued a brief in the case in support of the plaintiff.
Whole Woman’s Health v. Hellerstedt centers on whether Texas HB2 imposes an undue burden on a patient’s right to get an abortion. The plaintiffs, who are clinics and doctors, argue that both restrictions are unnecessary and limit access to abortion services. The Texas Department of State Health Services argues that the restrictions are reasonable and effective measures that raise the standard of care for abortion patients and ensure health and safety.
The 5th U.S. Circuit Court of Appeals sided with the state, a decision that will stand should the high court split 4-4. Antonin Scalia, Supreme Court Associate Justice and the ninth member of the high court, died Feb. 13.
Justices display preferences
During oral arguments , Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts expressed skepticism that abortion clinic closures in Texas were related to the regulations. They questioned why Whole Woman’s Health had not included more evidence in the record linking the events.
“There is very little specific evidence in the record in this case with respect to why any particular clinic closed,” Justice Alito said during arguments. “I mean, I could give you examples: Planned Parenthood Center for Choice, Bryan, Texas … The Huffington Post reported that this was closed as a result of the 2011 Texas Women’s Program bill which cut funding for family planning services. It’s not the law that we’re talking about here.”
Meanwhile, Associate Justice Sonia Sotomayor and Associate Justice Ruth Bader Ginsburg grilled Texas Solicitor General Scott A. Keller about the health benefits derived from the state’s regulations, asking why women undergoing nonsurgical abortions were required to take medications at an ambulatory surgical facility.
For his part, Mr. Keller defended the state’s regulations, saying the legislation improves continuity of care, increases clinical competence, and prevents miscommunication and patient abandonment. Requiring patients to take abortion-inducing medication in an ASC aids in the event of a complication, he said.
But Stephanie Toti , lead attorney for Whole Woman’s Health, and Donald B. Verrilli, Jr. , the Solicitor General of the United States, argued the state’s regulations are unnecessary and create substantial obstacles to abortion access.
“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,” Verrilli said during arguments. “And it does all of that on the basis of a medical justification that cannot withstand any meaningful scrutiny, that the American Medical Association has told you is groundless and that the district court found will actually operate in practice to increase health risks to women and not decrease [risks].”
Ruling could hinge on Justice Kennedy
Legal analysts said it was significant that the justices focused so much time on the link between clinic closures and the Texas law.
If the justices believe there is a lack of evidence in this regard, they may remand the case to the 5th Circuit for further development, said Ilya Shapiro , a senior fellow at the Cato Institute, a conservative public policy research organization. The high court may choose this route to avoid making a decision with only eight justices, Mr. Shapiro said.
“It would be kicking the can down the street,” he said. “A 4-4 ruling, the court doesn’t like to issue those if they can avoid them. If it can achieve agreement on narrower ways of resolving cases, I think it’s going to try to do that.”
If the justices move forward with deciding the core of the case, the vote will likely come down to Justice Kennedy, said Ruthann Robson , a law professor at the City University of New York School of Law and co-editor of the Constitutional Law Professor’s Blog .
While Justice Alito seemed to favor the state’s side, Justice Thomas was predictably silent, and Justice Roberts appeared to lean toward the state’s side, on the condition it could prove a rational basis for enacting HB2, she said. But Justice Kennedy is the mystery vote, she noted, adding that he was in the majority of the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey , which upheld Roe v. Wade.
“He seems to be in the middle on this issue,” Ms. Robson said. “Justice Kennedy did seem to be troubled during arguments about the idea that nonsurgical abortions being curtailed could cause women to have more surgical abortions. He specifically asked the Texas [solicitor general] about this.”
Given Justice Kennedy’s strong opposition to the so-called “partial birth” abortion procedure, expressed in the 2007 Gonzales v. Carhart case, it would seem he would be especially concerned with late-term abortions, she said.
Ms. Robson said she was surprised with the depth to which the justices compared abortion with other medical procedures during the debate and questioned the differences in safety. Justice Ginsburg, for instance, noted the statistical dangers of childbirth, colonoscopies, and dental procedures and inquired why Texas had not placed similar restrictions on those practices.
“That’s really at the heart of the case,” Ms. Robson said. “If abortion is not more dangerous than other procedures, the question is, why isn’t the state protecting women’s health in colonoscopies and dental procedures and other kinds of things? At the heart of the case is the problem of legislators seemingly acting to decrease abortion in the guise of protecting women’s health.”
A split vote, which would uphold the appeals decision, or a remand of the case could come as early as March 7, Mr. Shapiro said. If justices decide to issue an opinion, the ruling would likely come at the end of the court’s term in June.
On Twitter @legal_med