The demonstrators from opposing sides who massed on the sidewalks in front of the Supreme Court plaza accurately understood what was at stake as the justices considered a challenge to a Texas law strictly regulating abortion clinics. Anti-abortion demonstrators carried placards with an image of a fetus and the slogan “Protect Life.” Abortion-rights advocates countered with the well-tried slogan from the other side: “My body, my choice.”
The Texas legislature passed the law at issue, known as HB 2, for the ostensible purpose of protecting the health and medical safety of women undergoing an abortion at one of what were formerly 41 abortion clinics in the Lone Star State. But liberal justices largely demolished that claim during the arguments on Wednesday [March 2] that Chief Justice John G. Roberts Jr. allowed to run 25 minutes past the allotted hour.
The regulations require clinics to meet the physical plant and operating requirements imposed on so-called “ambulatory surgical centers” even though abortions are outpatient procedures. Doctors performing abortions also must have admitting privileges at a hospital within 30 miles of the clinic, supposedly to ensure the physician’s ability to provide continuing care in the rare event of complications requiring hospitalization.
The clinics and abortion-rights groups warned the legislature that the clinic regulations would be expensive to meet and the admitting privileges requirement difficult to impossible to satisfy. From all that appears, the warnings have been proved correct. The law was passed in 2013 and clinics were given until September 2014 to comply with implementing regulations. Today, 19 of the 41 clinics have closed; and others would have been forced to close but for the Supreme Court’s interim stay blocking parts from going into effect.
Outside the Supreme Court, demonstrators understood that the case, Whole Woman’s Health v. Hellerstedt, was about a woman’s right to choose versus the state legislature’s evident effort to obstruct that right. Some of the pro-lifers carried signs that read, “Protect Women, Protect Life,” with the hashtag #Protectthemboth. Even if their professed concern about women’s health was sincere, the real motivation behind the law came through loud and clear.
Inside the courtroom, opposing lawyers and justice struggled with the Supreme Court’s Delphic standard from the 1992 decision, Planned Parenthood v. Casey. An abortion law imposes an unconstitutional “undue burden,” the court said in the pivotal opinion coauthored by Justice Anthony M. Kennedy, “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
Conservative justices Chief Justice John J. Roberts and Justice Samuel A. Alito Jr. tried to buttress the state’s view that the law was a good-faith enactment to protect women’s health with no intent or effect to burden the woman’s choice. But the liberal justices, including all three female justices, showed the patent illogic of the health rationale and the law’s evidently “undue burden” on abortion rights.
Defending the law, Texas’s solicitor general Scott Keller insisted that the state “acted to improve abortion safety.” He and quickly added that abortion clinics remain open in the state’s six most populous areas.
Justice Ruth Bader Ginsburg interrupted to note the evidence that one-fourth of Texas’s women are more than 100 miles from the nearest clinic in the state. Keller replied that women in the El Paso area could drive one mile across the state line to a clinic in New Mexico. Ginsburg pointed out that New Mexico did not have regulations like those in Texas. “If that’s all right for the women in the El Paso area, why isn’t it all right for the rest of the women in the state?” she asked.
Later, Justice Elena Kagan asked why Texas imposed hospital-like regulations on abortion clinics, but not on facilities where doctors performed operations with far more complications: colonoscopies and liposuctions. Keller said the record included evidence of complications at abortion clinics, but Kagan underscored Keller’s failure to dispute her premise. Sotomayor followed by questioning the need for hospital-like standards for women undergoing medication abortions that entail nothing more than taking pills.
In his turn, Justice Stephen G. Breyer questioned the requirement that clinics’ doctors have admitting privileges at a local hospital. The requirement may seem minimal, but in fact hospitals may reject the out-of-town doctors who often staff abortion clinics for parochial reasons or to avoid any connection to the abortion debate.
Breyer noted that before the law clinics had to have some working arrangement to transfer a patient to a local hospital if necessary. He asked Keller for any examples when a doctor was unable to transfer a patient but for the lack of admitting privileges. “That is not in the record,” Keller conceded.
In upholding the law, the Fifth U.S. Circuit Court of Appeals essentially said courts had no business second-guessing the legislature. With Justice Antonin Scalia’s death, a possible 4-4 tie would affirm that decision and leave Texas’s law on the books. With the pivotal vote, however, Kennedy made clear his view that the court had to consider the evidence about the law’s burden and the state’s claimed justification together.
At one point, Kennedy suggested remanding the case for more evidence. That could buy the court time to wait for a possible ninth justice, but the women of Texas might understandably want to see this burden lifted now rather than later.