Much of the political world’s attention is understandably focused on the presidential race, but the eight-member Supreme Court heard arguments this morning in one of the most important reproductive rights cases in decades. MSNBC’s Irin Carmon published an overview of the case yesterday:
Texas, like many of its neighbors, has imposed on abortion clinics new standards that are so difficult for the clinics to meet that a majority of them will be or have been forced to close. Doctors must have admitting privileges at local hospitals, something they say many hospitals have been reluctant to supply out of opposition to abortion or fear of controversy. Abortions must take place in an ambulatory surgical center, a cavernous, multimillion-dollar facility for a procedure that involves no incision and in many cases involves taking a couple of pills. […]The state of Texas claims it is within its legal rights to regulate clinics for the sake of women’s health. The abortion clinics that brought the case counter that the low complication rate and existing regulations show the new law isn’t needed. “If these facilities were providing substandard care that posed a threat to patient health or safety, then Texas would be justified in shutting them down,” attorneys for the clinics wrote in a brief to the court. “But they have a long record of providing safe abortion care, which [Texas officials] do not dispute.”
For the clinics, this case is largely about exposing a sham: Texas Republicans imposed outrageous and unnecessary regulations, not to advance public health, but to curtail women’s access to legal abortions.
Indeed, the practical effects of the restrictions are not in dispute: after Texas implemented the new government regulations, the number of abortion clinics in the state was cut roughly in half. It was, by all appearances, a feature, not a bug, of the policy.
Of course, Justice Antonin Scalia’s recent passing changes the dynamic surrounding the case quite a bit. Depending on Justice Anthony Kennedy’s approach, the high court may rule 5 to 3 to reject Texas’ regulations, or it could end up in a 4 to 4 split, which would leave the lower court ruling in place.
SCOTUSblog’s Tom Goldstein noted, “The most momentous abortion case in a quarter century is thrown into turmoil by the prospect that the court won’t be able to give an answer because it will end in a tie.
And in Whole Woman’s Health v. Hellerstedt, the 5th Circuit Court of Appeals largely upheld the Texas law.
So, how’d oral arguments go this morning? NBC News’ Pete Williams reported from the Supreme Court this morning, and noted that he believes it’s unlikely that there are five justices who’ll endorse the Texas policy. Note, Williams also raised the prospect of the justices sending the case back to the lower courts for additional information.