The Supreme Court was divided along ideological lines in oral arguments on Wednesday in what is perhaps the most important abortion case in a generation, while swing vote Anthony Kennedy appeared to question the medical consequences of changing abortion practices in Texas.
The women on the Supreme Court seemed especially skeptical of Texas abortion restrictions in oral arguments in Whole Women’s Health vs. Hellerstedt on Wednesday, repeatedly asking why abortion was being singled out for extra constraints when more dangerous outpatient medical procedures are not. But Justice Kennedy, who will likely be the swing vote in this case, at one point questioned whether the trend towards surgical abortion in Texas, which some researchers say say is caused by longer waits at fewer abortion clinics, was “medically wise.”
The case concerns a Texas law, HB2, that requires abortion provider facilities to meet the standards of ambulatory surgical centers (ACS) and mandates that doctors who perform abortions must have admitting privileges at local hospitals. Abortion providers have challenged the law in court, alleging that it creates an “undue burden” on the constitutional right to an abortion. The Center for Reproductive Rights, which is arguing the case on behalf of Whole Women’s Health, says the restrictions would lead to the closure of about three quarters of Texas’s clinics.
Texas is defending the law, and state solicitor general Scott Keller argued Wednesday that the extra precautions are necessary to protect Texas women from possible complications from the procedure. If the court is split 4-4 without the late Justice Scalia’s vote, Texas’s law will go into effect, and similar laws in 24 other states will likely be allowed to stand.
Kennedy’s questioning betrayed little about which side will receive his crucial vote. He asked whether a district judge could delay the mandated restrictions for several years until clinics could comply with the new standards, and wondered aloud whether, if given more time to comply, the law would have a “beneficial effect” on clinic capacity.
But Kennedy also appeared concerned by the medical consequences of the Texas law, which some say has made it hard to obtain an early medical abortion (performed by taking two pills) and therefore increased the rate of surgical abortions, which usually occur later in a pregnancy. “Medical abortions are up nationwide but down significantly in Texas,” Justice Kennedy said. “I thought an underlying theme, or at least an underlying factual demonstration, is that this law has really increased the number of surgical procedures as opposed to medical procedures, and that this might not be medically wise.”
In his earlier writings on abortion, Justice Kennedy has demonstrated a cautious support for abortion rights but a vehement opposition to late-term abortion.
Justices Ginsburg, Kagan and Sotomayor were more clear about their feelings on the case, frequently sparring with Keller over his argument that HB2 is designed to protect women’s health. “Texas acted to improve abortion safety,” Keller said, and later argued that “the right held by women to make that ultimate decision is not burdened” because most major metropolitan cities in Texas still have a clinic.
The three women justices pushed back on that point, with Justice Kagan highlighting research cited by the plaintiff showing that with fewer than a dozen abortion providers left in the state, more than a million of Texas women will live more than 100 miles away, and many would be even more distant. “The slightest benefit is enough to burden the lives of a million women, that’s your point?” Justice Kagan asked Keller.
Justice Ginsburg disputed the state’s argument that even though the law would shutter clinics near El Paso, women in that area would not be burdened because they could travel to nearby New Mexico for an abortion, where physician admitting privileges or surgical center requirements do not apply. “If that’s all right for the women of the El Paso area, why isn’t it right for the rest of the women in Texas?” Ginsburg asked.