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Supreme Court hears arguments on Texas abortion-clinics case Supreme Court hears arguments on Texas abortion-clinics case
(about 9 hours later)
The Supreme Court’s liberal justices seemed united in Wednesday’s arguments that Texas’ abortion regulations are an unconstitutional burden on a woman’s right to an abortion, but the justice who holds the key vote questioned whether there was enough evidence to make such a finding. The Supreme Court’s liberal justices united Wednesday to attack Texas’s abortion regulations as an unconstitutional burden on a woman’s rights, but the justice who holds the key vote left the court’s ultimate resolution of the issue in doubt.
Justice Anthony M. Kennedy, whom both sides consider pivotal to the outcome of the court’s most important abortion case in a generation, wondered whether it was possible to tell if the changes in Texas law were responsible for the closure of nearly half the state’s abortion clinics. He wondered if lower courts might need to hear more evidence. Justice Anthony M. Kennedy, whom both sides consider pivotal to the outcome of the court’s most important abortion case in a generation, wondered whether there was enough evidence to decide that changes in Texas law were responsible for the closure of nearly half of the abortion clinics in the nation’s second-largest state. He wondered whether lower courts might need to do more work on the issue.
But Kennedy also seemed reluctant to accept Texas’s argument that there is no need to factor in the obstacles created for women when weighing the health benefits the state says resulted from the 2013 changes. But Kennedy also questioned the law in a way that would give hope to those who support abortion rights. He was reluctant to accept Texas’s arguments that there was no reason to weigh the state’s grounds for making the 2013 changes against the obstacles created for women.
And he seemed concerned that a lack of access might be causing women to undergo abortions later in their pregnancies, which are riskier. Both of those assertions were made by the abortion providers. And he seemed concerned that a lack of access might be leading to women undergoing abortions later in their pregnancies, which are riskier. “This may not be medically wise,” Kennedy said.
The case is being heard by only eight members because of the unexpected death of Justice Antonin Scalia, the conservative who did not believe the Constitution protected the right to abortion. If Kennedy joins the liberals to make a five-member majority, it will have national implications, cutting off what abortion opponents had seen as a promising way to make abortion more rare. Abortion rights backers say more than 200 restrictions have been passed by states in the past five years.
A 4-to-4 tie would uphold a lower court’s decision that the Texas law was constitutional but would not set a national precedent. The case is being heard by only eight members after the death last month of Justice Antonin Scalia, a conservative who did not believe that the Constitution protected the right to abortion.
But the absence of Scalia’s forceful personality was also felt in other ways. While the court’s four liberals were aggressive in their skepticism about the Texas law, the conservatives were restrained. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. seemed to support Texas, and Justice Clarence Thomas did not ask a question. If Kennedy sides with the three remaining conservatives, that will not be enough by itself to secure the court’s endorsement of the two issues at stake: requiring admitting privileges at a nearby hospital for doctors who perform abortions and requiring clinics to maintain hospital-like standards.
The case began with a forceful assertion by the attorney for Texas abortion clinics that state laws restricting the procedure amount to “unnecessary health regulations that create an undue burden” on women’s constitutional right to abortion. A number of states have adopted such standards, which they say improve patient care. But abortion providers say the rules are medically unnecessary and so expensive or hard to satisfy that they force clinics to close.
The clinic operators contend that the regulations, which require abortion clinics to meet hospital-like standards and force doctors to get admitting privileges at local hospitals, are medically unnecessary and would contribute to the closure of 75 percent of the state’s abortion clinics. While a 4-to-4 tie would uphold a lower court’s decision approving the Texas law, it would not set a national precedent. The restrictions have been found unconstitutional in other courts across the nation.
But before the attorney, Stephanie Toti, could lay out her case in any detail she was immediately grilled by the justices on other issues, including what evidence she had that any of the regulations passed by the Texas legislature in 2013 actually caused the closure of any of the clinics. Kennedy was among those who questioned Toti aggressively. The absence of Scalia affected the arguments in other ways. He was a dominating questioner, and when he and Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., fellow conservatives, worked in concert, they formed an intimidating bloc.
Toti responded that eight clinics closed in anticipation of the restrictions, 11 closed the day they went into effect, and plaintiffs in the case have testified that the restrictions were the cause. On Wednesday, it was the court’s four liberals who dominated the questioning.
“The timing of the closures alone” offered ample evidence, she said. “What it’s about is that a woman has a fundamental right to make this choice for herself,” said Justice Ruth Bader Ginsburg. She and Justice Sonia Sotomayor questioned the lawyers for so long after Roberts had indicated time was up that the scheduled one-hour argument stretched for almost 30 more minutes.
Stephanie Toti of the Center for Reproductive Rights, representing the clinics, told the court that Texas’s regulations violated the standard set in the court’s last majority abortion decision, 1992’s Planned Parenthood v. Casey.
That decision, written partly by Kennedy, balanced “states’ legitimate interests in regulating abortion and women’s fundamental liberty to make personal decisions about their pregnancies,” she said, adding that the Texas rules “are unnecessary health regulations that create substantial obstacles to abortion access.”
She contended that partial implementation of the law has meant the closure of about half of Texas’s more than 40 abortion clinics and that full implementation would reduce that to 10 or fewer in a state with more than 5 million women of reproductive age.
Alito questioned whether Toti had proved to lower courts that the new laws were the reason.
“There is very little specific evidence in the record in this case with respect to why any particular clinic closed,” Alito said.
Kennedy joined in that questioning, and that was when he wondered whether lower courts should take a closer look.
But Justice Elena Kagan said the facts of what has happened as the case has worked its way through the legal process answered the questions.
“It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” she said. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”
[The forgotten history of Justice Ginsburg’s criticism of Roe v. Wade][The forgotten history of Justice Ginsburg’s criticism of Roe v. Wade]
Alito pressed Toti for proof that the Texas law was leading to clinic closures and asked in how many instances was there solid evidence that the regulations were responsible. Roberts questioned Toti about whether the court should pass judgment on Texas’s grounds for passing the 2013 law, as long as the state had a rational reason for the changes.
She responded that of the 20 clinics that had shuttered, there was tangible proof for about 12. “I thought the undue burden and substantial obstacle [test] went to whether it was undue in light of the woman’s right to exercise her right to an abortion,” Roberts said — either the restrictions went too far or they didn’t, regardless of the state’s intent.
Kennedy asked Toti about what evidence she had that the remaining clinics in the state will not have capacity to handle an influx in patients when other clinics shuttered, and he wondered whether petitioners needed time to produce more facts. With Justice Clarence Thomas asking no questions, the conservatives’ questioning was muted. At times they debated a technical legal point that, because of previous legal wrangling in the case, the clinics may have lost their right to a blanket ruling that the Texas law is unconstitutional.
“I think there is sufficient evidence that they don’t have the capacity to handle the demand,” she said, adding that the cost of meeting ambulatory surgical standards deters providers from opening new clinics. U.S. Solicitor General Donald B. Verrilli Jr., representing the Obama administration, was forceful in his turn before the court.
At one point, liberal Justice Elena Kagan offered support to Toti’s claim that the timing of the clinic closures was a key piece of evidence. “It’s almost like a perfectly controlled experiment, isn’t it?” Kagan asked. “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. “And it does all of that on the basis of a medical justification that cannot withstand any meaningful scrutiny.”
The court’s liberals--Kagan and Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor--put on a solid show of support for the abortion providers. Verrilli seemed to score points with Kennedy when he said the remaining clinics that met the ambulatory surgical requirements — already required in Texas for second-trimester abortions — could not meet the demand.
Just before Chief Justice John G. Roberts Jr. turned to the next lawyer, U.S. Solicitor General Donald Verrilli, for his presentation, Sotomayor interjected with a final set of questions aimed at demonstrating that the Texas regulations set a higher standard for abortions than for similar procedures. There are about 65,000 to 70,000 abortions in Texas each year, Verrilli said, and clinics that meet the standards perform about 14,000 per year.
One example she offered was the “dilation and curettage” procedure, which is sometimes used in abortions but also after miscarriages. “Twenty percent,” Kennedy said.
Is it not true, Sotomayor asked, that the procedure for miscarriages is typically done in a doctor’s office setting, while the Texas law requires that it be done in an ambulatory surgical center if it is done in connection with an abortion? Verrilli’s counterpart, Texas Solicitor General Scott A. Keller, said that Texas was meeting its constitutional obligations.
Toti responded that Sotomayor was correct. “Abortion is legal and accessible in Texas,” Keller said. “All the Texas metropolitan areas that have abortion clinics today will have open clinics if the court affirms, and that includes the six most populous areas of Texas.”
Is there any evidence that the procedure is “more risky” when done in connection with an abortion? Sotomayor asked. “The procedures are virtually identical,” Toti said. But he was immediately set upon by the liberal justices.
Verrilli, representing the Obama administration, told the court that the Texas law was “more extreme than any abortion law” the court had previously considered. Kagan said that 750,000 women would live more than 200 miles away from an abortion clinic; before the law was passed, that number was 10,000.
Verrilli came loaded with facts and figures about how the law’s partial implementation has made it more difficult for women in Texas to obtain abortions and drew Kennedy’s interest. Sotomayor questioned why a woman undergoing a medication abortion, which requires taking pills, needed to do so in a center equipped for surgery. “Your brief seemed to be telling us that there’s no role for the court to judge whether there’s really a health benefit to what you’re doing,” she said.
In his turn, Texas Solicitor General Scott A. Keller told the court that “abortion is legal and accessible in Texas,” just as is required. Ginsburg and Justice Stephen G. Breyer questioned the requirement that doctors have admitting privileges at hospitals within 30 miles of a center. For one thing, Ginsburg said, any complications happen after a woman has left the center and has returned home.
Under tough questioning from the liberals, Keller said the court’s precedents allow Texas to treat abortion differently from other medical procedures. He said if there were specific problems about abortion access, those could be challenged without finding the entire law unconstitutional. And Breyer challenged Keller for evidence of a single incident in which a woman was turned away from a hospital because the doctor performing an abortion lacked the required credential.
“Once the facilities are closed, they’re closed,” Ginsburg responded. “And they can’t start up tomorrow.” Keller conceded there was nothing in the record to indicate that.
The review of a Texas law with regulations similar to those in other states thrusts the court into one of the country’s most divisive moral and political controversies. The divide over protecting the unborn and safeguarding the right of a woman to choose is among the starkest differences between Republican and Democratic candidates. The liberal justices said that liposuction and colonoscopies had higher rates of complications than first-trimester abortions but that those procedures were performed in doctor’s offices.
Numerous states have enacted restrictions that lawmakers say protect a woman’s health but that abortion providers contend are merely a pretext for making it more difficult to obtain an abortion — or even making the procedure unavailable within a state’s borders. Keller said abortion could be treated differently under the court’s precedents and said legislators “react to topics that are of public concern.”
The justices are applying a test the court formulated nearly 25 years ago in Planned Parenthood v. Casey . It said states had a legitimate interest in regulating abortion procedures but could not make them so onerous as to impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability. Kagan questioned the motives of the lawmakers. Even if Texas were allowed to set much higher medical standards for abortion clinics, she said, “I guess I just want to know why would Texas do that?”
Her point seemed to be that it was not to protect health but to close clinics.
The justices are applying a test the court formulated nearly 25 years ago in the Casey decision. It said states had a legitimate interest in regulating abortion procedures but could not make them so onerous as to impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.
Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”
Both sides are convinced that Kennedy controls the outcome. He, along with retired Justices Sandra Day O’Connor and David H. Souter, wrote what became the controlling opinion in Casey. While Texas presented medical experts who said the restrictions protected women, the clinics were supported by the American College of Obstetricians and Gynecologists and the American Medical Association, among other medical groups.
It will be hard for abortion opponents to win a precedent-setting victory without Scalia, should the court’s four liberals vote against the law. A 4-to-4 tie would uphold a decision of the U.S. Court of Appeals for the 5th Circuit that said the Texas law was constitutional and mean profound change in the nation’s second-largest state. “Laws that regulate abortion should be evidence-based and ­designed to improve women’s health,” they said in a brief. “The challenged provisions of H.B. 2 are neither.”
But a tie vote would not set a precedent. On the other hand, if Kennedy voted with the liberals that the Texas restrictions went too far, it could have national implications. Abortion supporters say more than 200 restrictions have been passed by states in the past five years. A trial judge found the arguments unconvincing and struck down those provisions of the law. But a panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans reversed that decision and said courts do not have to scrutinize the rationale provided by a legislature for abortion laws as long as that rationale has a reasonable basis.
Kennedy, 79, is hardly the rescuer that abortion rights supporters would wish for. In his nearly three decades on the court, he has upheld every abortion restriction he has ever considered save one. The exception was a Pennsylvania law that required pregnant women to notify their husbands before seeking an abortion. The case is Whole Woman’s Health v. Hellerstedt.
Texas argues in its brief that its 2013 law was a logical response to the shocking indictment of Philadelphia abortion provider Kermit Gosnell, who was convicted that year of first-degree murder in the deaths of three infants born alive and involuntary manslaughter in the death of a woman undergoing the procedure in his under-regulated clinic. Sandhya Somashekhar contributed to this report.
The state’s restrictions were meant to ensure the safety of women undergoing the procedure, Texas told the Supreme Court, and fit within Kennedy’s opinion in Casey that “states may regulate abortion, so long as the regulations have a rational basis and do not have the purpose or effect of creating a substantial obstacle to abortion access.”
The number of clinics in Texas has dropped from about 40 to 19 since portions of the law went into effect. If the providers lose at the Supreme Court, they say the number will drop to 10 or fewer for a population of 5.4 million women of reproductive age.
Abortion providers say requiring doctors to have admitting privileges at a nearby hospital are unnecessary. A hospital would accept any woman with a problem. Moreover, some hospitals allow admitting privileges only to doctors who refer a certain number of patients to the facility. But abortion patients rarely require hospitalization.
They say there is no reason for first-trimester abortions to be performed in surgical centers that are designed for more invasive medical procedures.
The American Medical Association agrees with the abortion providers.
“Laws that regulate abortion should be evidence-based and designed to improve women’s health,” said the AMA brief. “The challenged provisions of H.B. 2 are neither.”
Texas presented medical officials who said the requirements would benefit women. A trial judge found the arguments unconvincing and struck down those provisions of the law. But a panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans reversed that decision and said courts do not have to scrutinize the rationale provided by a legislature for abortion laws as long as that rationale has a reasonable basis.