What Will the Supreme Court Do in the Texas Abortion Case?
Today's oral argument in the US Supreme Court in the Texas abortion case (Whole Women's Health v. Hellerstedt) was likely the most complicated and intense argument in an abortion case since Roe v. Wade. Certainly the stakes have never been higher in the fight to ensure that every person is welcomed in life and protected in law
The case, Whole Woman's Health v. Hellerstedt, involves Texas House Bill 2, a measure enacted in 2013 with a number of life-affirming provisions. Placing profit above women's health, abortion providers challenged provisions requiring them to meet the same health and safety standards as ambulatory surgical centers (ASCs), as well as to have admitting privileges at a local hospital. In June 2015, the Fifth Circuit upheld the provisions, and the abortion providers appealed to the U.S. Supreme Court in their continued effort to avoid compliance with the commonsense requirements.
Americans United for Life (AUL) has defended such laws since 2002 and has been active in this case since its inception, submitting an amicus brief in the Fifth Circuit and in the Supreme Court.
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The argument pitted an attorney for the Center for Reproductive Rights (CRR) and the Solicitor General of the United States, Donald B. Verrilli (the President's attorney before the Supreme Court), against Scott Keller, the Solicitor General of Texas.
Because the questioning was so intense, the Chief Justice gave each side 8 extra minutes (added to the 30 scheduled minutes for each side).
The first question to the CRR attorney came from Justice Ginsburg about a procedural issue (called res judicata) that could short-circuit much of this case. Res judicata means basically that a plaintiff does not get "two bites at the apple" to present claims in the trial court. CRR brought 2 cases against the Texas law. And the CRR attorney had a difficult time explaining which facts were "material" and "newly developed" that could not have been brought in the first case.
But most of the questions had to do with the "benefits" of the Texas clinic regulations and admitting privileges requirement versus the "burden" on abortion clinics.
In the time he had, Verrilli helped the CRR by summarizing the alleged burden on the clinics from the Texas regulations. His closing theme — obviously directed to Justice Kennedy — was that the "balance" struck by the Court's 1992 decision in Planned Parenthood v. Casey would be undermined if these regulations were upheld because they "severely" limit access to abortion in Texas, by reducing the number of abortion clinics in Texas.
Scott Keller followed and was constantly pummeled with questions from Justices Ginsburg, Breyer, Sotomayor and Kagan. Keller had an excellent command of the record and repeatedly cited pages in the Joint Appendix to support the facts.
Yet, this case is the latest example of how abortion clinics present little evidence in the trial court and then try to pad their briefs on appeal with "facts" beyond the record and in "friend of the court" briefs filed by pro-abortion interest groups in the Supreme Court. 45 such briefs were filed in support of the abortion clinics.
In the approximately 80-90 minutes of oral argument, there was virtually never a time of even 20 uninterrupted seconds when Scott Keller could explain the medical rationale or benefits of the law. When he tried, he was interrupted with new questions.
Keller was very poised in attempting to answer complex factual questions about, for example, the number of clinics in Texas still open, despite repeated interruptions. His answers were almost invariably clear and concise. Between them, Justices Ginsburg, Breyer, Kagan and Sotomayor would ask a question and then interrupt Keller with another question. But he almost never got out a complete sentence without being asked an additional and competing question.
Generally speaking, Chief Justice Roberts, and Justices Kennedy and Alito asked more questions of the CRR attorney and Justices Ginsburg, Breyer, Kagan and Sotomayor asked more questions of Scott Keller, suggesting (based on Justice Thomas' votes in prior abortion cases) that the Court could very possibly divide 4-4 (with only eight justices sitting after Justice Scalia's death).
And that vote will likely come this Friday, March 4, when the Justices meet "in conference" to vote on pending cases. The Justices could decide this case on the procedural grounds — which could be a win for Texas — but given the amount of time spent on the "merits" and the impact of the Texas regulations, it seems more possible that the procedural issues will not be decisive. If the justices voted 4-4, it would result in the lower court's decision standing — in lawyers' terms, it would mean that the lower court decision is "affirmed by an equally divided Court."
That would leave in place the decision of the US Court of Appeals for the Fifth Circuit, which upheld the Texas regulations. That would be a win for Texas, and for patient health and safety, but it would not set a nationwide precedent approving such regulations for other states. And thus a 4-4 vote would mean that the Court would likely be asked to revisit this issue in 2017 or 2018 in cases from other states.
If the Court divides 4-4, and votes on Friday, an announcement of that "affirmance by an equally divided Court" could possibly come sometime next week. Or the Court could hold that until later in the term. (A similar result came during the vacancy of Justice Powell's seat, after Robert Bork was defeated in the Senate, and before Justice Anthony Kennedy was confirmed in a case called Hartigan v. Zbaraz, involving parental notice of abortion, decided on December 14, 1987 (484 U.S. 171 (1987)).
Or the Court could decide the case on the procedural grounds, which might be held for later in the term. Based on the argument, it did not seem that the abortion clinics would get 5 votes on any ground, although Justice Kennedy asked whether a remand (sending the case back to the trial court) for new facts would provide any new material facts, though he did not energetically explore that.
These regulations on ASCs and the requirement of admitting privileges at a local hospital within 30 miles of the abortion clinic are long-standing and generally applicable regulations for ambulatory surgical centers. They help to ensure continuity of care between a performing surgeon and a receiving surgeon at an ER. That is particularly important in the case of abortion clinics, who have the unique practice of telling patients, "If you have any complications, don't come back here, go to the nearest ER." Too bad the justices didn't give Mr. Keller time to explain that without interruption. A victory for Texas would be a victory for patient health and safety.
With all the interest in health and safety standards from state legislators and with the abortion industries' commitment to investing in attorneys rather than women's health, we are certainly going to find ourselves in court again arguing over laws to protect women in abortion clinics from immediate and long-term risks.
A transcript of today's argument can be found on the Supreme Court's website later today: Whole Women's Health v. Hellerstedt, No. 15-274
