In the first high-profile case to be heard since the death of Justice Antonin Scalia, the Supreme Court appeared deeply divided on what restrictions a state can put on reproductive care. On March 2, the Court heard arguments in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s HB2, a law that requires hundreds of changes for clinics and doctors that provide abortions. The requirements are allegedly designed to protect women’s health, but the Texas law and the many others like it in other states are a sham designed to close clinics and make abortion inaccessible (and they are particularly harmful to low income women, who are disproportionately women of color).
Oral Argument: March 2, 2016
The Damage Caused by HB2
Who You'll Hear: Chief Justice John Roberts; Stephanie Toti, attorney for Whole Woman’s Health; Justice Stephen Breyer; Justice Samuel Alito; Justice Elena Kagan
Though HB2 is not in full effect, it is clear that the law would be devastating if fully implemented. The law has two major components, one focused on doctors and one focused on clinics. The law requires any doctor who performs abortions to have “admitting privileges”—the ability to admit a patient into a hospital—at a hospital within 30 miles of the clinic. The law requires clinics to meet hundreds of specifications to become “ambulatory surgical centers” (ASCs), basically mini-hospitals. Early in the argument, Stephanie Toti, the lawyer representing the doctors and clinics challenging the law, explained that each of these requirements would individually be a major blow to abortion access. You’ll hear Ms. Toti argue that each part of the law is independently unconstitutional due the number of clinics they would close. Then Chief Justice Roberts and Justice Alito question the evidence for the number of clinic closures caused by the law.
After several more questions from Justice Alito, Justice Kagan put a fine point on the evidence that the law caused clinics to close, noting that there was essentially a “perfect controlled experiment” that illustrates the law’s effects.
What Is An “Undue Burden”?
Who You'll Hear: Justice Ruth Bader Ginsburg; Chief Justice John Roberts; Stephanie Toti, attorney for Whole Woman’s Health; U.S. Solicitor General Donald Verrilli
In Planned Parenthood v. Casey in 1992, the Court held that states cannot enact laws that put an “undue burden” on women seeking an abortion. The opinion, authored in part by Justice Kennedy, said there is an undue burden when “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” Whole Woman’s Health could clarify when a state creates an undue burden and, in particular, whether a court must consider the reasons the state purportedly enacted the law, in addition to the difficulty a woman faces in obtaining an abortion. If the Court were to hold that a state’s motives in passing a law are irrelevant, a state could enact laws that do nothing to promote health or safety and are intended to make it more difficult to get an abortion. (There is ample evidence that the legislature intended to prevent women from being able to get abortions when they passed HB2.) Allowing states to intentionally block women from exercising their fundamental right to abortion would profoundly weaken that right.
Ms. Toti explained that both of these are vital considerations. By considering both, the Court can ensure that states are free to enact laws that protect women from unsafe conditions, but are prohibited from enacting laws that have no justification other than making abortions harder to obtain. Notably, Ms. Toti wasn’t able to address this core question of the case until well into the argument, so the Court allowed both sides additional time to make their cases.
When Solicitor General Verrilli addressed the Court on behalf of the United States, he also urged the Court to look at both the effect the law will have and the state’s justifications for regulating abortion. “Undue means excessive or unwarranted,” General Verrilli explained. But he added that even if the Court chooses to look only at the additional obstacles to abortion that a law creates, HB2 should still fail.
Singling Out Abortion
Who You'll Hear: Justice Elena Kagan; Texas Solicitor General Scott Keller; Justice Sonia Sotomayor; Justice Samuel Alito; Justice Anthony Kennedy; Justice Ruth Bader Ginsburg
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.
Capacity Quandary . . . and a Way to Punt?
Who You'll Hear: U.S. Solicitor General Donald Verrilli; Justice Anthony Kennedy; Justice Samuel Alito; Justice Stephen Breyer
There were a few indications that some of the justices might want to avoid making a sweeping ruling that would affect abortion access for women nationwide, possibly in light of having only eight justices to decide such an important issue. Another option would be to “remand” back to a lower court to reexamine the case, hear more evidence, or craft a different remedy (such as deciding that only some parts of the law could go into effect).
One point for which a remand might provide clarity is the question of how many abortions could Texas clinics provide—in other words, their capacity—if HB2 went into full effect. If the capacity of the remaining clinics would be very low, that would make it harder for women to get abortions and suggests that HB2 does create an undue burden. However, the capacity could change over time if clinics were able to get the resources to meet the new requirements and doctors were able to get admitting privileges. Capacity seemed particularly important to Justice Kennedy, whose vote might be critical to avoiding a 4-4 split. Though some evidence on the capacity of the remaining clinics is in the record, Justice Alito seemed to believe it was insufficient. You’ll hear Justice Alito refer to the “Louisiana case”; Louisiana’s abortion restrictions are also being challenged (and as it did last year with the Texas’s HB2, the Supreme Court recently blocked them from going into full effect). The Court could choose to hold off on making a major decision in Whole Woman’s Health and then take the Louisiana case next term, when it may have nine justices.