WASHINGTON – A marathon filibuster by then-state Sen. Wendy Davis couldn’t stop Texas’ strict abortion law, and on Wednesday, it was not clear that a divided Supreme Court is ready to do so either.
Texas abortion clinics were in court to challenge two provisions of that law: That all abortion providers have admitting privileges at local hospitals and that abortions only take place in expensive ambulatory surgical centers. The cumulative impact: Three quarters of Texas abortion clinics close. Many already have.
Justice Anthony Kennedy, still the key swing vote on the eight-member court, spoke little during oral argument Wednesday. He raised the possibility of sending the case back to a lower court for more fact-finding as to whether the clinics that remain in Texas can meet the demand for abortion. If so, Whole Woman’s Health v. Hellerstedt, potentially the most consequential abortion rights case in a generation, could return to a court that included Justice Antonin Scalia’s successor.
If Kennedy votes to uphold the law, creating a 4-4 tie, a ruling would only apply to states covered under the 5th Circuit Court of Appeals. Advocates for the clinics say that would mean the majority of clinics would close in Texas and Louisiana, which has passed a similar law, and the last clinic in Mississippi would be shuttered.
In the meantime, the justices on each side of the ideological aisle did what they could to try to persuade Kennedy. In particular, Chief Justice John Roberts and Justice Samuel Alito focused on what could be procedural weaknesses in the case, as well as whether the clinics had showed that abortion access has indeed been and will be limited specifically because of the law.
Stephanie Toti, arguing on the clinics' behalf, pointed out that the number of clinics had remained fairly stable in the five year period beforehand, followed by the abrupt closure of more than 20 clinics.
Alito also pushed back at the claim that the requirements are so onerous that they put clinics out of business. “Is it correct that the number of ambulatory surgical centers performing abortion has increased by 50 percent since this law went into effect?” Planned Parenthood affiliates operate ambulatory surgical centers in Dallas, Houston, Austin and San Antonio.
Texas says the law is intended to raise the standard of care for abortion, not prevent the procedure entirely. Scott Keller, arguing on behalf of Texas, declared at the outset, “Abortion is legal and accessible in Texas.” The state has pointed to the fact that major cities in Texas still have abortion clinics, and it claims those clinics can meet the demand for the procedure.
The justices appointed by Democrats repeatedly hammered home evidence that abortion is extremely safe for women and that the regulations don’t significantly make it safer.
Each of the liberal justices also suggested that Texas had singled out abortion despite the fact that it has lower complication rates than other outpatient procedures. Justice Sonia Sotomayor, for example, asked if getting a dilation and curettage in a doctor’s office is any riskier than getting an abortion; Toti called the procedures "virtually identical."
Justice Elena Kagan pointed out that liposuction is about 30 times more risky than abortion.
Justice Stephen Breyer asked about whether there was any evidence that Texas women had suffered complications as a result of their doctor not having admitting privileges or their abortion not taking place in an ambulatory surgical center. "Which were the women?" Breyer demanded. "On what page does it tell me their names, what the complications were, and why that happened?"
He also suggested that the additional burdens placed on women with fewer clinics would mean the law actually endangers women. “Are there going to be more women or fewer women who die from complications?” he said.
Kagan asked flat out why Texas passed the law. Keller replied that there were complications from abortion. Kagan repeatedly pressed him on the fact that the complication rate from abortion is lower than other procedures. “Legislatures react to topics of public concern,” Keller finally said.
Justice Ruth Bader Ginsburg asked how the state could point to the existence of abortion clinics in New Mexico, just across the state line from El Paso, as providing access to women there. “That’s odd,” she said, because New Mexico clinics don't have the same requirements. "Well, if that's all right for the women in the El Paso area, why isn't it right for the rest of the women in Texas?
U.S. Solicitor General Donald Verrilli, who had 10 minutes to argue against the law, said, "The effects of the Texas law at issue in this case are much more extreme than those of any abortion law that this Court has considered since Casey. That would be Planned Parenthood v. Casey in 1992, the case that set the prevailing standard for abortion laws.
Verrilli all but told Kennedy he would be breaking a promise to American women by upholding the Texas law.
"If you do find that this law is upheld, what you will be saying is that this right really only exists in theory and not in fact going forward,," said Verrilli, referring to the right of abortion, "and that the commitments that this Court made in Casey will not have been kept."
Casey, of course, was also the last time Kennedy voted to strike any part of a restriction on abortion.