WASHINGTON -- The Supreme Court on Wednesday heard 85 minutes of oral arguments in a major abortion rights case that could forever define whether Roe v. Wade is good law, or merely dead letter without practical effect.
At the heart of the hearing was the court's own "undue burden" standard, a constitutional test developed in 1992 to measure whether abortion regulations place substantial obstacles on women seeking the procedure.
Without the vote of Justice Antonin Scalia, who died last month, the decision for Whole Woman's Health v. Hellerstedt could be split 4 to 4. Should this happen, a Texas law called HB 2 will continue curtailing access to legal abortions for women in the state and a national precedent on reproductive rights won't be set. HB 2 requires abortion clinics in the state to undergo costly upgrades so they resemble mini-hospitals, and mandates that doctors working in the clinics obtain admitting privileges at nearby hospitals.
With the potential for a divided ruling, all eyes were on Justice Anthony Kennedy -- whose vote was widely considered to be pivotal, and who has a polarizing record on a woman's right to choose to end a pregnancy.
In one telling moment, Kennedy pressed Scott Keller, the Texas
solicitor general, to address how a law purportedly designed to protect women’s
health is instead forcing them to travel hundreds of miles in order to obtain
an abortion -- which could delay the procedure until later in the pregnancy and
raise the possibility of health-related problems.
This, Kennedy suggested, means the law would push women who could
otherwise take the abortion pill during their first trimesters to opt for surgical
procedures.
"That may not be medically wise," he said.
That was just the beginning of trouble for Keller, who was soon subjected to a barrage of questions on the law's health justifications from the women on the court and Justice Stephen Breyer.
"What is the benefit of having an ambulatory surgical center to take two pills when there's no surgical procedure at all involved?" asked Justice Ruth Bader Ginsburg.
Keller insisted that the requirement protected against "drug-induced complications," for which an abortion may be required as a follow-up procedure, but Ginsburg wasn't having it.
"That complication is likely to arise near the women's home," she said -- a scenario that wouldn't square with the law's requirement that doctors at abortion clinics have admitting privileges at a hospital within 30 miles of the clinic.
"Thirty miles of the surgical center, when the woman lives at a much greater distance? And if she's going to go to any hospital, it will be in her local community, not near the surgical center," Ginsburg said.
The liberal wing of the court wouldn't let up. Justices Elena Kagan, Sonia Sotomayor, Breyer and Ginsburg spent the better part of 10 minutes probing Texas' rationale for regulating abortion more heavily than other surgical procedures that are more statistically dangerous.
Relying on data that advocates had submitted to the court, Breyer noted that abortions are 28 times less risky than colonoscopies, which don't require ambulatory surgical centers. Not even dentists' offices are held to such high standards, he said.
What is the benefit to Texas law "when the risk is minuscule compared to common procedures that women run every day in other areas without ambulatory surgical centers?" Breyer asked.
Keller responded that Texas should be allowed to treat abortion differently from other medical procedures, and that under the Constitution, the legislature only needs "a legitimate purpose in acting."
"According to you, the slightest health improvement ... is enough to burden the lives of a million women," Sotomayor said.
Kagan seemed to disagree that lawmakers can simply "say anything" with regard to abortion facilities and treat them differently from places where other procedures take place simply because they believe they'll improve women's health.
"I'm sure that there's medical evidence that if every hospital, if every facility was as good as Massachusetts General [Hospital], they would be better facilities," she said.
The conservative justices grilled Stephanie Toti, who was arguing against Keller, as to whether there was enough concrete evidence to show that all 20 Texas clinics that closed did so because of the regulations in question. Justice Samuel Alito cited a 2013 Huffington Post article to show that at least one of those clinics, a Planned Parenthood facility in the town of Bryan, closed due to state budget cuts.
"There is little evidence as to why any particular clinic closed," he said.
Toti responded that 11 of the 20 clinics closed on the day the regulations went into effect, and that their owners cited the new law as the reason. The others preemptively closed before the law went into effect because they anticipated not being able to meet the extensive requirements.
For a good portion of Toti's time at the lectern, the conservative justices were eager to explore preliminary issues of trial procedure and fact-finding -- at least suggesting that some of them would rather send the case back to a lower court to collect more evidence about how the law had affected clinics than issue a definitive constitutional ruling.
At one point Chief Justice John Roberts seemed to cast doubt on the legal strategy behind the case, which began as two separate lawsuits -- one challenging the admitting privileges requirement and another the mini-hospital provision.
"It seems to me the separation of the two provisions ... would make your case much harder," he said, implying that if the whole law was really burdensome for the clinics, it should have been litigated all at once.
When all was said and done, it was Ginsburg, a longtime champion of women's rights, who offered the strongest defense of the law of abortion as it now stands. The reason the Supreme Court is interested in the case "is that a woman has a fundamental right to make this choice for herself," she said, pointing to Planned Parenthood v. Casey, the landmark 1992 case that upheld Roe v. Wade and is now at risk of losing force.
"Casey made that plain that the focus is on the woman, and it has to be on the segment of women who are affected," she said.
A decision in Whole Woman's Health v. Hellerstedt is expected sometime before the end of June.