llWASHINGTON — For the first time in more than 20 years, the U.S. Supreme Court turned its attention to an abortion case that could change legal precedent governing the most contentious social issue in national politics.
In oral arguments Wednesday for Whole Woman’s Health v. Cole, the justices examined the constitutionality of two controversial 2013 Texas regulations that require abortionists to have admitting privileges at hospitals no more than 30 miles away and direct abortion businesses to match facilities available at outpatient surgical centers.b
The outcome of this case could affect similar laws restricting abortion in Wisconsin, Louisiana and Alabama, enacted in the wake of the gruesome trial of Kermit Gosnell, the infamous Philadelphia abortionist who was convicted in 2013 of three counts of first-degree murder of infants born during late-term abortions at his business and of involuntary manslaughter in the death of a 41-year-old patient.
Protesters outside of the court underscored the importance of this moment. But no matter how the justices rule, the decision will bring the high court back to center stage during a complex and unpredictable election season.
As the oral arguments began, court watchers gave special weight to comments and questions from Justice Anthony Kennedy. The perennial swing vote on the ideologically divided court, Kennedy, a Catholic, has generally upheld abortion restrictions, but he has also made exceptions.
“Kennedy was too hard to read,” said Matt Bowman, senior counsel of the Alliance Defending Freedom, which filed a friend-of-the-court brief on behalf of the state of Texas.
“I think it is quite clear the best we can hope for is a 4-4 decision,” Teresa Collett, a professor at the University of St. Thomas School of Law, told the Register, after she left the Supreme Court Wednesday morning.
In fact, Kennedy was among the first to probe the abortion providers’ claim that Texas’ restrictions on their businesses had actually caused the closure of 20 facilities. But he was more responsive to their second claim: that the reduced number of centers had resulted in delays for women seeking abortions.
“Kennedy was concerned about the capacity issue: Do the remaining clinics have the capacity to serve all the women who want to have an abortion?” noted Collett.
The state of Texas has defended the constitutionality of the law, arguing that it was enacted to protect the health of women in the wake of the Gosnell trial, which also exposed weak regulatory oversight of abortion businesses.
However, abortion providers contended that the law's demanding standards forced the closure of more than half of the 41 facilities in Texas, “drastically reducing access to safe and legal abortion services throughout” the state.
During the first part of the oral arguments, Fordham adjunct professor Stephanie Toti, the lawyer with the New York-based Center for Reproductive Rights, who represented the coalition of Texas abortion providers, faced a round of tough questions.
“The justices were focused on abortion clinics’ lack of evidence in their attempt to claim that somehow the laws protecting women’s safety caused a serious burden that the court should recognize,” noted Bowman.
Two previous landmark abortion cases decided by the Supreme Court allowed states more leeway to restrict abortions, but directed legislators not to enact laws that imposed an "undue burden" on women seeking to end the pregnancy.. Thus, the Texas abortion providers had to convince the court that the state had violated that delicate compromise, while several justices, including Kennedy, appeared skeptical.
“And what’s this key … evidence?” prodded Kennedy, in a series of sharp exchanges with Toti.
“The evidence is the clinic closures that resulted from enforcement — actual enforcement — of the admitting-privileges requirement,” responded Toti.
Kennedy, Chief Justice John Roberts and Justice Samuel Alito pointed out that the plaintiffs had already raised these issues with a lower court in previous litigation. What, they asked, had changed?
Toti said the news of the closures provided fresh evidence, and the abortion business owners remained convinced the law was to blame.
“Basically, your argument is that the law took effect, and, after that point, there was a decrease in the number of clinics,” said Alito.
“So suppose you win here, and the state then examines what happened in each of these clinics and comes up with evidence showing that, in quite a few instances, the closure was due to other factors.”
If that happened, he predicted, the state of Texas could argue that the high court’s decision was not binding, and more litigation would ensue.
Kennedy again questioned Toti’s claims and said there was no legal precedent that required courts to delay rulings until regulations “had been promulgated for some time and their practical impact was clear.”
However, the plaintiffs’ second claim — that the restrictions sharply limited the availability of legal abortion and so forced women to delay their abortions — clearly stirred Kennedy’s interest.
He asked if it would be “proper” and “helpful” for “this court to remand for further findings on clinic capacity.”
Toti countered that further research on the issue wasn’t necessary. The capacity problem was undisputed, given that just 10 ambulatory surgical clinics were available for abortion services. But later she agreed that a remand would help the plaintiffs “supplement the evidence.”
Then, just as Roberts was about to close the questions for Toti, Justice Sonia Sotomayor intervened, raising additional concerns about the practical feasibility of the law.
Sotomayor nudged Toti to explain how the medical procedure “dilation and curettage,” commonly known as a “D&C,” was still performed in a doctor’s office after miscarriage, but now, in the case of an abortion, Texas law required that the procedure take place in an ambulatory surgical center.
Building on her argument that the law imposed burdensome and medically unnecessary restrictions on access to abortion, Sotomayor pointed to a second requirement that women take the two prescribed pills for a medical abortion in an approved facility, rather than at home.
Then U.S. Solicitor General Donald Verrilli Jr., who represented the Obama administration’s interest in the case, told the justices that “common sense” provided sufficient reason to overturn the law.
Verrilli came armed with facts and figures designed to bolster the abortion providers’ case.
“With respect to capacity, before this law took effect, there were approximately 65,000 to 70,000 abortions a year,” he said.
The ambulatory surgical clinics in the state “performed about 14,000 a year,” so they would have to ramp up capacity “four- or fivefold” in order to accommodate the expected demand.
When Scott Keller, solicitor general for the state of Texas, addressed the court, Justice Ruth Bader-Ginsburg and Sotomayor asked him to provide data regarding the long distances some Texas women must now travel to obtain abortions.
Keller replied that women in some underserved areas could access abortion services across the border in New Mexico. And when the justices dismissed that information as immaterial, he said the law did not violate legal precedent that directed the courts to protect women’s “ability to make the ultimate decision or elect the procedure.” Further, he noted, Texas abortion providers had acknowledged that the new laws offered some medical benefit.
Sotomayor wasn’t satisfied.
“[T]he slightest benefit is enough to burden the lives of a million women. That’s your point?” she asked, venting her frustration with regulations that were designed to protect the health of women yet restricted access to abortion.
The oral arguments reminded the public that the high court is still deeply divided along ideological lines. And following the death of Justice Antonin Scalia, a possible 4-4 ruling would probably lead the court to return the case back to the 5th Circuit, which ruled in favor of the Texas law.
In other words, the Texas regulations would stand, without setting legal precedent for similar rules in other states where laws restricting abortion have also been challenged.
A second possibility is that the justices might delay a full hearing until after the court has a full complement of nine justices. And some legal specialists, taking note of Kennedy’s comments, even speculated that the court might remand, allowing time for the abortion providers to collect fresh evidence and a new justice to be appointed.
“There are so many things they could do with this case,” said Bowman.
“Roe v. Wade sat on the court for three years, for various reasons. There is no way to tell what they will do here.”
The court may signal its plans by Monday. But, whatever happens, the resolution of this high-profile case will remind Americans in a difficult election year that the vote of every justice matters, and Scalia's replacement will prove decisive.
Joan Frawley Desmond is the Register’s senior editor.