In what was originally slated to be an hour of oral arguments, the U.S. Supreme Court went 19 minutes overtime Wednesday in the case of a Texas law that aims to restrict abortion. If the ruling in the case—Whole Woman’s Health v. Hellerstedt—knocks down the law, it would have nationwide implications and be a major victory for reproductive rights activists. If it splits 4-4, the law would be upheld, but no precedent would be set because of the tie and subsequent litigation—presumably with a ninth justice confirmed on the bench—could reverse such a decision.
But hints from the questioning of litigators by the key justice—Anthony Kennedy—indicate the Supreme Court might return the case to the lower courts to gather more evidence about whether the law has shuttered abortion clinics in Texas, thus making it more difficult for women seeking to terminate their pregnancies. In a scathing 2014 decision, a federal district court judge ruled the law was out of bounds, but a panel of the Fifth Circuit Court of Appeals overturned that ruling. The law’s foes then appealed to the Supremes.
A transcript of the oral arguments is available here.
Two provisions of the law are at issue. One requires that doctors performing abortions at clinics must obtain admitting privileges at a nearby hospital, often a difficult task. The other mandates that clinics meet the same building standards as hospital surgical facilities. Opponents of the law say these requirements that supposedly were passed to protect women’s health are medically unnecessary. They insist that the law’s true purpose is to close as many abortion clinics as possible.
There’s plenty of evidence for that view given the less-guarded remarks made by forced-birther lawmakers in Texas and other states that have passed similar laws.
The challengers in the case argued before the justices today that the Texas law undercuts the 1992 ruling in Planned Parenthood v. Casey that sought to “balance states’ legitimate interests in regulating abortion and women’s fundamental liberty to make personal decisions about their pregnancies.” In the language of Casey, laws that produce an “undue burden” on women’s access are unconstitutional. The Texas law fails the test because it makes access to abortion more difficult. Hundreds of laws have been passed in the past five years, and scores of them erect significant hurdles to women seeking to terminate their pregnancies.
Definitions matter. What exactly constitutes “undue burden?”
In Texas, where there were at least 60,000 legal abortions last year, every time a clinic closes it puts stress on the scheduling of those that remain, and half of the state’s abortion clinics have closed since the law was passed.
Justices Kennedy and Samuel Alito made clear in questioning that they think there is not enough evidence to conclude that the law was the reason for the clinic closures. About this, they grilled Stephanie Toti, the young lawyer representing the Center for Reproductive Rights, an organization that has fought restrictions on abortion for the past 24 years. Toti said that the admitting privileges provision, which is partially in effect, is the reason for the closure of 20 of what had been 41 clinics offering abortions.
Alito then asked, “As to how many, of the total that you claim closed, do you have direct evidence about the reason for the closure?”
Toti replied, “Well, 11 of them, Your Honor, closed on the day that the admitting privileges took effect.”
She admitted under further questions that she only had direct evidence for 12 of the 20.
At which point Justice Elena Kagan asked: “And is it right that in the two-week period that the ASC [ambulatory surgical center] requirement was in effect, that over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately; is that right?
Toti replied: “That—that is correct, Your Honor. And... and...”
Kagan: “It's almost like the perfect controlled experiment as to the effect of the law, isn't it? It's like you put the law into effect, clinics closed. You take the law out of effect, they reopen.”
Toti: “That's absolutely correct.”
In an analysis at the SCOTUSblog, Lyle Denniston noted that Justice Kennedy may be trying to find a way out of being part of a non-precedent-setting 4-4 decision that will satisfy nobody even though it would temporarily leave the Fifth Circuit’s ruling intact—meaning that more clinics, probably 10 more, would close.
In that light Kennedy approached the issue of the capacity of the remaining clinics to handle the abortion load. He hinted that perhaps the case might be sent back to the lower courts, where lawyers could put into the record some evidence relating to the impact of that lowered capacity:
First, it would allow the Court to avoid a decision about the validity of either part of the Texas law, if it should turn out that, at Friday’s planned discussion of the case in a private Conference, the initial vote came out split four to four (the late Justice Antonin Scalia was a fervent foe of abortions). Returning the case for gathering of new evidence would avoid that outcome — indeed, any immediate outcome — and thus would avoid the even division that settles nothing and always disappoints the Court. It might even put off the case until the current vacancy on the bench is filled with a new Justice.
Second, of equal or perhaps even greater importance, there may have been a logical basis for that suggestion and it could have been in Kennedy’s mind. If he had any inclination to uphold either or both of the provisions, Kennedy would have a choice: should he lead the Court into a five-to-three ruling in favor of the law, without knowing whether the capacity of the remaining clinics — nine or ten at most — would be enough to handle all abortions that would be sought in the state (recently, between 60,000 and 75,000 a year)? Thus Kennedy might want to hesitate to cast a fifth vote on the merits until he knew how the capacity question were to be answered.
Third, Kennedy’s hesitation on ruling on the merits of the law seemed even more likely by a question he asked later in the argument. He pressed the lawyer for Texas, state Solicitor General Scott A. Keller, on whether the enforcement of the two provisions would actually lead more women to have more abortions through surgery, by forcing them to wait, with more risk than having an earlier abortion through the use of drugs that induce termination of pregnancy (“medical abortion”).
If the case is going back to the lower courts, we could know as soon as Monday. If the justices choose to make a ruling on the merits, it likely will be mid-June before their decision is announced.