When Scott Keller, the Solicitor General of Texas, addressed the Court, he argued that the Texas legislature enacted HB2 in order to protect the health of women who get abortions. Some of the justices asked why, if Texas was concerned about women’s health, had it not passed similar laws for riskier procedures, such as liposuctions, colonoscopies, or child birth. Mr. Keller said that “abortions can be treated differently.”

You’ll also hear Justice Alito (who dissented in Planned Parenthood v. Casey when the case was heard by the Third Circuit, prior to reaching the Supreme Court) ask, hypothetically, if a state could raise the standard of care for abortions to the “very highest anywhere in the country.” Though the question was likely designed to make a very different point, Mr. Keller’s response seemed to convince Justice Kennedy that the undue burden standard includes some consideration of a state’s justification for passing an abortion restriction.