WASHINGTON – Hundreds of protesters gathered on the white steps of the Supreme Court on a cold Tuesday morning. Some had come to support abortion rights. Others had come to support the state of Texas. Together, the intermingled group created a pulsating roar that could be heard inside the Supreme Court, as the eight justices tackled the latest installment of the court’s dealing with the controversial topic of abortion.
There was no shouting in the courtroom, but the justices were just as outspoken and divided as the crowd outside. Justice Clarence Thomas did not make any remarks, but the other seven justices more than made up the difference.
In 2013, Texas passed a law regulating abortion clinics. Two provisions drew the ire of abortion-rights advocates. The first said physicians who perform abortions must have admitting privileges at a hospital within 30 miles of the clinic. Second, abortion clinics had to meet the standards of surgical centers. Texas is far from the only state that has adopted is considering such restrictions.
Planned Parenthood challenged the first provision in 2014. The Fifth Circuit Court of Appeals determined that requiring admitting privileges was constitutional. Planned Parenthood did not appeal this decision, and the case never reached the Supreme Court.
Two of the court’s conservative justices – Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito – asked many of the questions of Stephanie Toti, who represented Whole Women’s Health, which challenged the Texas law.
Toti claimed the law required clinics to upgrade facilities at great expense, causing many clinics to close instead. This makes it difficult for women, especially in rural areas, to have access to abortion clinics. In the 1993 Casey case, the court ruled that state restrictions on abortion cannot create an “undue burden” on a woman seeking an abortion by placing “substantial obstacles” in her path.
But the conservative justices said she did not have specific information, particularly concerning the closing of clinics as a result of the Texas law.
“I really don’t understand why you could not have put in evidence about each particular clinic and show why the clinics closed,” Alito said.
Justice Anthony M. Kennedy asked if it would be useful to send the case back to the lower court.
“Would it be A, proper, and B, helpful, for this court to remand for further findings?” he asked Toti.
Much of the focus was on Kennedy, as his vote will likely be the deciding factor in this case. Roberts, Alito and Thomas are likely to support Texas while Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer are likely to support the clinic.
With the death of Justice Antonin Scalia last month, the court has eight justices. If Kennedy joins the conservative justices and the court is split 4-4, the lower court’s ruling will be stand, and Texas’ law will go into effect. But a tie ruling does not set a precedent or apply throughout the country.
In June, Kennedy joined the liberal justices in a 5-4 decision to block the lower court’s decision until the Supreme Court could ruled on the case.
The liberal justices did the grilling when Scott Keller, Texas solicitor general, took his turn before the court. He was scheduled to speak for 30 minutes, but the Roberts allowed him to speak for over 40 minutes. The arguments were supposed to last an hour but went on for 90 minutes.
The liberal justices focused on the claim that abortion was dangerous. Breyer pointed out that a colonoscopy was 28 times more dangerous, while Kagan added that liposuction is 30 times more dangerous, and yet neither required regulations as stringent as an abortion procedure in Texas.
Keller argued that abortion was risky, and denied that childbirth was more dangerous.
“Is there really any dispute that childbirth is a much riskier procedure than early stage abortion?” Ginsburg asked, prompting laughter in the courtroom.
Keller said that Texas chose to hold abortion to a higher standard “in the wake of the Kermit Gosnell scandal,” which drew a groan from the audience.
Gosnell, a Philadelphia physician, provided late-term abortions for low-income and immigrant women. He was arrested for killing infants born alive, and his clinic was discovered to be unsanitary with untrained staff.
But Ginsburg said this was a flimsy justification for the new regulations.
“What evidence is there that, under the prior law, the prior law was not sufficiently protective of the women’s health?” Ginsburg asked. “As I understand it, this is one of the lowest-risk procedures, and you give a horrible [example] from Pennsylvania, but absolutely nothing from Texas.”
A decision on the case will likely arrive by June.
This story has been updated to correct Scott Keller’s title. He is Texas solicitor general, not attorney general.
Reach reporter Luke Torrance at [email protected] or 202-408-1494. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire. Like the Scripps Howard Foundation Wire interns on Facebook and follow us on Twitter and Instagram.
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