The Supreme Court’s liberal justices seemed convinced in Wednesday’s arguments that Texas’ abortion regulations were an unconstitutional burden on a woman’s right to an abortion, but the justice who holds the key vote questioned whether there was enough evidence to make such a finding.
Justice Anthony M. Kennedy, whom both sides consider pivotal to the outcome of the court’s most important abortion case in a generation, wondered whether it was possible to tell whether it is the 2013 changes in the Texas law that forced the closure of nearly half the state’s abortion clinics. He wondered if lower courts might need to hear more evidence.
But he also seemed not to accept Texas’s argument that the state’s intent in passing the law should not be considered, and wondered whether the restrictions were forcing women into abortions later in their pregnancies which might be more risky. Both of those assertions were made by the abortion providers.
The case began with a forceful assertion by the attorney for Texas abortion clinics that state laws restricting the procedure amount to “unnecessary health regulations that create an undue burden” on women’s constitutional right to abortion.
The clinic operators contend that the regulations, which require abortion clinics to meet hospital-like standards and force doctors to get special privileges at local hospitals, are medically unnecessary and would contribute to the closure of 75 percent of the state’s abortion clinics.
But before the attorney, Stephanie Toti, could lay out her case in any detail she was immediately grilled by the justices on other issues, including what evidence she had that any of the regulations passed by the Texas legislature in 2013 actually caused the closure of any of the clinics. Kennedy was among those who questioned Toti aggressively.
Toti responded that eight clinics closed in anticipation of the restrictions, 11 closed the day they went into effect, and plaintiffs in the case have testified that the restrictions were the cause.
“The timing of the closures alone” offered ample evidence, she said.
Justice Samuel Alito also pressed Toti for proof that the Texas law was leading to clinic closures and asked in how many instances was there solid evidence that the regulations led to those closures.
She responded that of the 20 clinics that had shuttered, there was tangible proof for about 12.
Kennedy asked Toti about what evidence she had that the remaining clinics in the state will not have capacity to handle an influx in patients when other clinics shuttered, and he wondered whether petitioners needed time to produce more facts.
“I think there is sufficient evidence that they don’t have the capacity to handle the demand,” she said, adding that the cost of meeting ambulatory surgical standards deters providers from opening new clinics.
At one point, Justice Elena Kagan offered support to Toti’s claim that the timing of the clinic closures was a key piece of evidence.
Just before Chief Justice John Roberts turned to the next lawyer, U.S. Solicitor General Donald Verrilli, for his presentation, Justice Sotomayor interjected with a final set of questions aimed at demonstrating that the Texas regulations set a higher standard for abortions than for similar procedures. One example she offered was the “dilation and curettage” procedure, which is sometimes used in abortions but also after miscarriages.
Is it not true, Sotomayor asked, that the procedure for miscarriages is typically done in a doctor’s office setting, while the Texas law requires that it be done in an ambulatory surgical center if it is done in connection with an abortion?
Toti responded that Sotomayor was correct.
Is there any evidence that the procedure is “more risky” when done in connection with an abortion? Sotomayor asked. “The procedures are virtually identical,” Toti said.
Supporters of the restrictions on the abortion clinics made their case in the second half of the hearing.
The review of a Texas law with regulations similar to those in other states thrusts the court into one of the country’s most divisive moral and political controversies. The divide over protecting the unborn and safeguarding the right of a woman to choose is among the starkest differences between Republican and Democratic candidates.
Numerous states have enacted restrictions that lawmakers say protect a woman’s health but that abortion providers contend are merely a pretext for making it more difficult to obtain an abortion — or even making the procedure unavailable within a state’s borders.
The challenged provisions of the Texas law require that abortion facilities meet the standards required of surgical centers and say doctors who perform abortions at clinics have admitting privileges at a nearby hospital.
The justices are applying a test the court formulated nearly 25 years ago in Planned Parenthood v. Casey . It said states had a legitimate interest in regulating abortion procedures but could not make them so onerous as to impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.
Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”
Both sides are convinced that one justice is pivotal to the outcome: Anthony M. Kennedy. He, along with retired Justices Sandra Day O’Connor and David H. Souter, wrote what became the controlling opinion in Casey.
The case is being heard by an eight-justice court because of the unexpected death of Justice Antonin Scalia, who was one of the court’s most outspoken opponents of the idea that the Constitution protects a right to abortion.
It will be hard for abortion opponents to win a precedent-setting victory without Scalia, should the court’s four liberals vote against the law. A 4-to-4 tie would uphold a decision of the U.S. Court of Appeals for the 5th Circuit that said the Texas law was constitutional and mean profound change in the nation’s second-largest state.
But a tie vote would not set a precedent. On the other hand, if Kennedy voted with the liberals that the Texas restrictions went too far, it could have national implications. Abortion supporters say more than 200 restrictions have been passed by states in the past five years.
Kennedy, 79, is hardly the rescuer that abortion rights supporters would wish for. In his nearly three decades on the court, he has upheld every abortion restriction he has ever considered save one. The exception was a Pennsylvania law that required pregnant women to notify their husbands before seeking an abortion.
Texas argues that its 2013 law was a logical response to the shocking indictment of Philadelphia abortion provider Kermit Gosnell, who was convicted that year of first-degree murder in the deaths of three infants born alive and involuntary manslaughter in the death of a woman undergoing the procedure in his under-regulated clinic.
The state’s restrictions were meant to ensure the safety of women undergoing the procedure, Texas told the Supreme Court, and fit within Kennedy’s opinion in Casey that “states may regulate abortion, so long as the regulations have a rational basis and do not have the purpose or effect of creating a substantial obstacle to abortion access.”
The number of clinics in Texas has dropped from about 40 to 19 since portions of the law went into effect. If the providers lose at the Supreme Court, they say the number will drop to 10 for a population of 5.4 million women of reproductive age.
Abortion providers say requiring doctors to have admitting privileges at a nearby hospital are unnecessary. A hospital would accept any woman with a problem. Moreover, some hospitals allow admitting privileges only to doctors who refer a certain number of patients to the facility. But abortion patients rarely require hospitalization.
They say there is no reason for first-trimester abortions to be performed in surgical centers that are designed for more invasive medical procedures.
The American Medical Association agrees with the abortion providers.
“Laws that regulate abortion should be evidence-based and designed to improve women’s health,” said the AMA brief. “The challenged provisions of H.B. 2 are neither.”
Texas presented medical officials who said the requirements would benefit women. A trial judge found the arguments unconvincing and struck down those provisions of the law. But a panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans reversed that decision and said courts do not have to scrutinize the rationale provided by a legislature for abortion laws as long as that rationale has a reasonable basis.