Waiting for yesterday’s oral argument in Whole Woman’s Health v. Hellerstadt, the challenge to Texas’s efforts to regulate abortions, to begin, reporters joked that their coverage of the argument could basically be written in advance, following the now-familiar plotline of many high-profile arguments in recent years. On one side: the Court’s four more liberal Justices, ready to strike down the regulations. Allied against them on the other side, with the death of Justice Antonin Scalia last month: the Court’s three more conservative Justices, supporting the regulations. And in the middle, with the potentially deciding vote, would be Justice Anthony Kennedy. It’s almost a cliché, but that’s also pretty much exactly how it played out. And Kennedy, the key vote, raised the prospect of sending the case back to the lower court to add more facts to the record – an outcome that would also conveniently increase the likelihood that the case would not return to the Court (if at all) until after Scalia’s successor has been confirmed. Let’s talk about yesterday’s argument in Plain English.
At issue in yesterday’s oral arguments were two provisions in a Texas law known as HB2. One provision, known as the “admitting privileges” requirement, requires doctors who perform abortions to have the right to admit patients to a local hospital. The second, sometimes referred to as the “ASC” requirement, requires abortion clinics to have facilities comparable to outpatient surgical centers. The admitting privileges can be hard (if not impossible) for doctors who perform abortions to obtain; the ASC requirement may be so expensive as to be prohibitive. The state contends that the new regulations were put in place to protect women’s health. Abortion rights advocates dispute that contention, arguing that the law was in fact intended to limit access to abortions by causing most clinics in the state to close, making it so difficult for many women to obtain abortions that it is almost the same as a complete ban on abortion.
Before diving into the merits of the case – whether the Texas law amounts on an “undue burden” on a woman’s right to have an abortion, in violation of the Constitution – the Justices focused on a threshold question: whether, as the challengers contend, the clinics have closed in the wake of HB2 actually did so because of HB2. To put it another way, were the closings a matter of causation or correlation? And how should the Court figure this out?
Justice Samuel Alito seemed to think it might be correlation, not causation. There is very little specific evidence, he complained, about why particular clinics might have closed, and he cited a news article suggesting that at least one clinic had closed for reasons that had nothing to do with HB2. When only a relatively small number of clinics are involved, he added later, why wouldn’t you put in such evidence? Chief Justice John G. Roberts echoed this concern, asking Stephanie Toti – who argued on behalf of the clinics and doctors – to point to evidence supporting the idea that the clinic closures were the result of HB2.
Justice Elena Kagan saw things very differently. She noted that, during the “two-week period when the ASC requirement was in effect,” twelve clinics closed, only to re-open again when the enforcement of the law was blocked. Those openings and closings, she suggested, were hardly a coincidence. Later on Solicitor General Don Verrilli, arguing on behalf of the United States in support of the challengers, echoed this point, telling the Justices that the only possible conclusion is that the closures were caused by the law.
Another question about evidence (or the lack thereof) prompted Kennedy to suggest an alternative resolution to the case, which might prove attractive to other Justices too. The question relates to what Kennedy describes as “capacity” – whether the clinics that remain open will be able to provide the sixty-thousand-plus abortions that Texas women seek each year. Given the importance of the issue, Kennedy suggested, should the Court send the case back to the trial court for additional findings on exactly what that capacity is? Toti resisted that suggestion, but Kennedy pressed on. The evidence, he said, could show whether the law actually has an effect, allowing the Court to make a more informed decision. (And by “the Court” I mean Justice Kennedy, because everyone else seemed to have made up their minds.) Returning to this idea later, Kennedy asked Verrilli whether the district court could block the enforcement of the law for two or three years to see whether clinics could meet the existing need for abortions. Like Toti, Verrilli demurred, but Kennedy quipped, “District judges often think they can do anything.”
The Court’s four more liberal Justices spent much of their firepower aiming at the state’s assertion – reiterated by Texas Solicitor General Scott Keller at the outset of his argument — that HB2 was “enacted to protect women’s health.” Justice Ruth Bader Ginsburg, the most senior of the four liberals, led the charge. (Anyone wondering why Ginsburg, who turns eighty-three later this month, doesn’t retire should listen to the oral argument audio when it becomes available on Friday. She is in her element.) When Keller seemed to suggest that women in the El Paso area could seek an abortion at a facility in nearby New Mexico, Ginsburg reminded him pointedly that New Mexico doesn’t have the same ASC or admitting privileges requirements. If that’s all right for the Texas women for whom New Mexico offers the closest clinics, she continued, why isn’t it all right for everyone?
Justice Stephen Breyer reminded Keller that before HB2 went into effect, clinics simply needed to have a working arrangement with a hospital to transfer patients. Where in the record, he demanded, will I find evidence of women who had complications but could not get to a hospital under the old law, but could under the new law? When Keller allowed that there is no such evidence in the record, Breyer asked, somewhat rhetorically, what benefits women gain from a procedure that is going to cure a problem that doesn’t exist? In fact, Breyer added later, having fewer clinics could create more hazards for women’s health, as women instead resort to self-induced abortions.
Perhaps most crucially, Kennedy noted to Keller that HB2 has increased the number of surgical abortions – as opposed to medical abortions, which use pills. And that increase, Kennedy noted, “may not be medically wise.”
The more liberal Justices also expressed concern that Texas legislature was singling out abortions for restrictions when other routine medical procedures – such as colonoscopies and liposuction – with much higher risks of complications are not required to take place in a surgical center. Keller responded that HB2 was enacted in the wake of revelations about Kermit Gosnell, a Philadelphia doctor who performed late-term abortions in appalling conditions and was convicted of first-degree murder for the deaths of several infants who were delivered alive. Alito pointed out that Whole Woman’s Health had itself been cited for “really appalling violations” uncovered by an inspection, but Ginsburg shot back that the problem in Pennsylvania had been that no one had inspected the Gosnell clinic in fifteen years, while Texas had “its own mechanism” to prevent that from happening. Sotomayor chimed in, telling Keller that the state’s concerns are “valid only if there is a real problem.”
Solicitor General Verrilli finished his stint at the lectern by emphasizing what is, in the view of the government and the challengers, at stake. HB2, he told the Court, is the very “definition of an undue burden.” A ruling that upholds HB2, he stressed, would signal that the right to an abortion “really exists in theory, not in fact.”
After yesterday’s argument, it seems fairly clear that the best the state can hope for is a four-four tie; I can say with some confidence that none of the Court’s four more liberal Justices will vote to uphold HB2. A four-four deadlock would leave the Fifth Circuit’s decision upholding the law in place, without setting a nationwide precedent. But even a four-four tie could be a stretch for the state, because it would require – wait for it – the vote of Justice Anthony Kennedy. And Kennedy seemed more inclined either to strike down the regulations or to send the case back to the lower court. In Texas and elsewhere, many people will be on pins and needles until they learn what he has decided. And that could take a while.