It’s been a circuitous journey for HB2, the omnibus abortion bill the Texas Legislature passed 2013. Suits have been filed, the law has been overturned, appeals have been made. A collection of Texas abortion clinics, led by Whole Woman’s Health, filed the most debated lawsuit, which is aimed the broader provisions of the bill: Specifically, Whole Woman’s Health v. Hellerstedt challenges the constitutionality of HB2’s requirement that doctors performing abortions in Texas have admitting privileges at hospitals and also the requirement that each clinic meet the standards of an ambulatory surgical center.
Although the case had a similar courtroom path to previous suits against the law—including being overturned at the district level—Whole Woman’s Health vs. Hellerstedt went even further. The Supreme Court stepped in almost immediately to issue an injunction against HB2 going into effect until the high court had the chance to hear it on appeal.
That happened Wednesday.
New York-based attorney Stephanie Toti, representing Whole Woman’s Health (and joined by U.S. Solicitor General Donald Verrilli), made her arguments against HB2 before the eight-members of the court; representing Texas and Hellerstedt, our state’s Solicitor General Scott Keller defended the law.
There are a few key issues to be determined by the court. The first is if Whole Woman’s Health vs. Hellerstedt is the appropriate case to be raising these arguments, or if another case, Planned Parenthood vs. Abbott, should have addressed them. Also related to that facet of the case is if the window for examining the law has since closed because that suit didn’t appeal to the Supreme Court. The second issue—and the one that received the majority of the focus Wednesday—is on the question of the “undue burden” on Texans seeking abortions. In the last major abortion case the court heard, 1992’s Planned Parenthood vs. Casey, the court found that states could impose restrictions on abortion if the restrictions didn’t pose an undue burden on the rights of the person who seeks an abortion. But that ruling didn’t specify a definition for “undue burden,” so attorneys on both sides attempted to make claims that the phrase does—or doesn’t—refer to HB2.
The court’s ideological lines have long been drawn, and on Wednesday the liberal justices—Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer—pressed Keller and Texas hard on the issue of the undue burden.
Keller’s opening argument was that Texas acted to improve safety for women seeking abortions, and that all major metropolitan areas will have clinics even if HB2 goes into effect. (One of those areas—El Paso—won’t have a clinic within 500 miles in Texas, but will have a clinic 12 miles over the border in New Mexico.)
Ginsburg seized on both of those facts for her interrogation immediately, asking Keller how many women who may need abortions are outside of those areas. (That number was close to one million—Kagan cited 900,000 who are at least 150 miles from the nearest clinic, and 750,000 who are 200 miles or more away.) Ginsburg noted that the precedent cited by the 1992 case was specific: the test couldn’t be about how many people seeking access to abortion aren’t burdened by the law, but by the ones who are.
“You don’t look to all the women who are getting abortions,” Ginsburg said. “You look only to the women for whom this is a problem. And so the only women we would be looking at is not all of the women who live in Austin or in Dallas, but the women who have the problem who don’t live near a clinic.”
Keller responded that it may be the case in laws that regulate the people seeking abortions—but HB2 is about doctors and clinics, not people having the procedure. Ginsburg argued that the effects of the law were felt by those Texans who sought abortions, and Keller returned to his previous argument: “The right held by women to make that ultimate decision is not burdened in, at a minimum, a large fraction of cases in Texas,” he claimed.
Ginsburg was similarly aggressive in regards to the state’s argument about the El Paso region. The 5th Circuit’s ruling on Whole Woman’s Health vs. Hellerstedt maintained that the clinic in McAllen could keep operating (unless another clinic that met regulations opened) because of the region’s geographic distance from the nearest clinic outside of the Valley—nearly 250 miles away, in San Antonio. It didn’t make a similar exception for the clinic in El Paso, because while the nearest Texas clinic to the area is 550 miles away in Austin, there’s a clinic just over the state border in New Mexico.
The justice also seized on the fact that New Mexico doesn’t require its clinics to have ambulatory surgical clinic standards. “So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things,” Ginsburg said. If Texans need clinics that meet an that requirement, why is the state arguing that they can get an abortion that meets an acceptable level of service in a state without those regulations?
The pressure stayed on Keller throughout the duration of his argument, with Sotomayor and Kagan looking past “undue burden” to get to the ultimate question surrounding the bill since it was being debated in Austin: Namely, is this about increasing standards of care, as some proponents of the bill have argued, or is it about restricting access, as the law’s opponents have claimed? (It’s worth noting that some of the bill’s supporters in the legislature—from former Lt. Governor Dewhurst to Sen. Eddie Lucio—have expressed more openly that they passed the bill out of an interest in opposing abortion.)
This came to a head near the close of oral arguments. Kagan hit on several points about the state’s interest in raising standards of care: She’d asked, for example, about whether the state had the right to require all health care providers to meet the standard of the best hospital in the country (citing Massachusetts General), to which Keller responded that the state did have that right, so long as it didn’t create an undue burden on people seeking treatment. Breyer and Sotomayor noted that the rate of complications in colonoscopies are higher than in abortions, but facilities that offer colonoscopies don’t face the same regulations that abortion clinics do under HB2. (The word “colonoscopy” was said a surprisingly high number of times for a Supreme Court hearing about abortion.)
But near the end of Keller’s argument, Kagan cut to the chase. She noted that she understood that Keller’s argument was that the law allows Texas to impose regulations on abortion clinics that it doesn’t apply to other procedures—but she wanted to know why it picked abortion.
“You said that as the law is now, under your interpretation of it, Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work. And you said that that was your understanding of the law; am I right?” Kagan asked Keller, “And I guess I just want to know: why would Texas do that?”
In all, it was an aggressive series of questions from the court’s liberal justices—but the fact that the four liberal justices would find a lot to dislike in HB2 isn’t exactly news. In the wake of Antonin Scalia’s death, the question became much more about what could be expected of the four remaining judges on the bench.
To that end, Justice Samuel Alito seemed eager to interrogate the plaintiff’s argument, and to pitch in with some softballs when Keller was being hammered. Clarence Thomas, meanwhile, remained silent—as he’s been known to do for most of the past ten years (indeed, his first question in a decade of oral arguments came only last Monday—something he didn’t duplicate Wednesday). Chief Justice John Roberts, meanwhile, pressed Whole Woman’s Health representative Toti, but rarely had questions for Keller. Those wondering if he might be a wildcard in his first major abortion case on the bench might read from the questions he chose to ask that he felt the plaintiff’s argument was the weaker of the two. That left Anthony Kennedy, long considered the court’s swing vote on abortion, once more in focus.
Kennedy, during oral arguments in Whole Woman’s Health vs. Hellerstedt, interrogated both sides—but his questions for Keller didn’t suggest that he found the state’s arguments as convincing as the legislature might have hoped.
Specifically, near the beginning of Keller’s argument, Kennedy zeroed in on the issue of medication abortions, as opposed to surgical abortions. The judges on the court’s liberal wing had inquired about this: Sotomayor found it especially difficult to understand why, under HB2, a patient seeking an abortion via a pill would have to travel to a clinic that met such stringent requirements rather than take the pill at home. And when Kennedy first questioned Keller, he noted that—whether a result of HB2 or coincidence—the proportion of medication abortions versus surgical abortions was going down in Texas, while it was going up in the rest of the country.
“I thought an underlying theme, or at least an underlying factual demonstration, is that this law has really increased the number of surgical procedures as opposed to medical procedures, and that this may not be medically wise,” Kennedy pointed out.
The other clue as to which way Kennedy might be leaning came near the end of the hearing, when he challenged Alito and Keller on the definition of the undue burden. Alito had spoken up as Kagan quizzed Keller on if the state could require that all medical facilities in Texas meet the standard of stellar hospitals, and Kennedy explained his thinking on the undue burden test (which he had helped author in the 1992 case).
“Doesn’t that show that the undue burden test is weighed against what the state’s interest is?” he asked Keller, essentially making the same argument as the liberal side of the bench. He seemed to be suggesting that a burden was undue if the benefits of regulations put in place didn’t outweigh the risk of a procedure. That wasn’t a position that seemed compelling to Roberts during Toti’s testimony, and it seemed to show a split on the case that put Kennedy on the same side as Ginsburg, Kagan, Sotomayor, and Breyer. If that’s true, it could mean that even without a ninth justice on the bench, national clarity on HB2’s requirements could be coming.