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.
Gretchen Borchelt
“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.