Analysis Law and Policy

The Future of Abortion Rights Could Be Decided in This Election

Jessica Mason Pieklo

There is quite literally everything on the line for reproductive rights advocates in Whole Woman's Health v. Hellerstedt.

Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.

In case it wasn’t clear before Wednesday’s oral arguments in Whole Woman’s Health v. Hellerstedt, presidential elections matter.

For nearly two hours, U.S. Supreme Court justices weighed two provisions of HB 2, the Texas anti-abortion omnibus bill that has been the focus of sustained legal challenges since 2013. At issue are the law’s requirements that abortion providers in the state have hospital admitting privileges within 30 miles of their clinic, and that abortion clinics meet the same architectural requirements as stand-alone ambulatory surgical centers (ASCs).

Leading into Wednesday’s arguments, both pro- and anti-choice advocates had their sights set on Justice Anthony Kennedy, the swing vote each needs in their corner. But if Justice Kennedy had his mind made up going into Wednesday’s arguments, he didn’t give many signals from the bench. When he did chime in, it was clear he was grappling to find a way out of this case for the Court: He specifically raised the possibility of remanding the case back to the lower courts, possibly for more fact-finding on the patient capacity of those abortion clinics that have managed to stay open since HB 2’s passage.

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This would be a smart move for a Court concerned with appearing too political or deciding such a high-profile case with an incomplete bench. It would also resolve nothing, just effectively kicking the case down the road for a bit. It’s too soon to say what would happen to the clinics in that scenario. Currently, the Fifth Circuit’s decision putting all the requirements into effect is on hold, thanks to a stay issued by the Roberts Court when it took up the case. The question is whether the Court would lift that stay, should it send Whole Woman’s Health back to the Fifth Circuit.

By contrast, Chief Justice John Roberts and Justice Samuel Alito’s thoughts on the case were quite clear. Stephanie Toti, senior counsel for the Center for Reproductive Rights (CRR), had barely finished her introduction to the justices when Roberts pounced on the idea that Whole Woman’s Health should be barred from challenging the admitting privileges portion of the law. He pointed out that the Supreme Court had refused to step in and block it in Planned Parenthood v. Abbottthe first challenge to the admitting privileges provision of HB 2 back in 2013.

After Justice Roberts finished suggesting the plaintiffs shouldn’t even be in Court on their admitting privileges claim in the first place, he then, perhaps accidentally, misstated the legal standard for judging abortion restrictions. Should the Court consider whether the restrictions placed an “undue burden” on abortion rights, as Planned Parenthood v. Casey and more than 20 years of reproductive rights jurisprudence dictates? Or is the question really whether or not these regulations posed a “substantial obstacle” to a woman’s right to choose?

Spoiler: It’s not one or the other, as Roberts suggested. It’s both.

Under the undue burden standard, courts must first decide whether a law has the purpose of placing a “substantial obstacle” before women seeking abortions. Then the courts move to the second step in the analysis, which asks whether restrictions have the effect of placing a substantial obstacle in the path of women seeking abortions. In other words, there is an “intent” part of the equation and a “consequence” part of the equation, and courts are required to engage both, not one or the other, as Roberts suggested. Since Casey, federal courts have gummed up this second step, and the Fifth Circuit in Hellerstedt just cruised right over it entirely. And it appears that’s what Roberts hoped to do as well.

Justice Samuel Alito, on the other hand, was just plain rude in his questioning of Toti. But I suppose that is to be expected from a conservative justice who, while on the bench, rolled his eyes when Justice Ruth Bader Ginsburg read from her dissent in Vance v. Ball State, the decision that made it more difficult for employees to pursue workplace harassment claims.

Alito seemed most concerned with whether or not abortion providers could actually prove they closed due to HB 2’s requirements or you know, some other reason not actually in the case record, like for having holes in the walls. Many of these ASC requirements seem innocuous, Alito mused. Hardly the kind of requirements that could “burden” anything. Though he didn’t say as much aloud, he may as well have just scoffed, “C’mon ladies, what’s all this fuss about?”

Justice Thomas said nothing.

Which brings me back to elections, their importance, and specifically the importance of this presidential election on this Supreme Court. Two of the day’s best performances came from President Obama’s nominees, Justice Sonia Sotomayor and Justice Elena Kagan, who, with their liberal colleagues Justices Ruth Bader Ginsburg and Stephen Breyer, shredded both the conservative justices’ questions and the State of Texas’ entire case.

Here is Justice Kagan on whether or not there was enough of a link between the law’s provisions and clinic closures, referencing the blizzard of court opinions blocking, then un-blocking, then re-blocking, the measures: “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it? It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”

Funny how that works, huh?

And here is Justice Sotomayor responding to Roberts’ word salad on the undue burden standard by reviewing the different hoops a patient in Texas must jump through, both to access a medication abortion and a surgical one. She then tied those hoops back to the purpose and effect of the HB 2 provisions, showing just how dubious Texas’ claims are that either requirement is about patient health:

JUSTICE SOTOMAYOR: Can I walk through the burden a moment? There’s two types of early abortion at play here. The medical abortion, that doesn’t involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?

MS. TOTI: Under Texas law, she must take them at the facility, butbut that is otherwise correct.

JUSTICE SOTOMAYOR: I’m sorry. What? She has to come back two separate days to take them?

MS. TOTI: That’s correct, yes.

Nothing like a well-placed “I’m sorry, what?” to draw attention to the absurdity of the restrictions at issue.

But Justice Sotomayor was not finished. To make it clear that the state’s purported safety reasoning is nothing more than legislative afterthought, she then brought up the fact that a dilation and curettage (D and C) is a procedure used for other purposes in addition to terminating a pregnancy:

JUSTICE SOTOMAYOR: What is the risk factor for a D and C related to abortion and a non-abortion D and C? D and Cs are performed in offices for lots of other conditions besides abortion. Is there any evidence in the record that shows that there is any medical difference in the two—in thein the procedures that would necessitate an abortion being in an ASC or not, or are abortions more risky than the regular D and C?

MS. TOTI: No, Your Honor. The evidence in the record shows that the procedures are virtually identical, particularly when D and C is performed to complete a spontaneous miscarriage. So when a woman miscarries and then follows up with her doctor, the doctor will typically perform a D and C. And that’s virtually identical to an abortion, but it’s not subject to thethe requirements of HB 2.

JUSTICE SOTOMAYOR: So your point, I’m taking, is that the two main health reasons show that this law was targeted at abortion only?

MS. TOTI: That’s absolutely correct. Yes, Your Honor.

It’s nice to hear a Supreme Court justice speak frankly about reproductive health issues without invoking “difficult decisions,” and instead focusing on the medical procedure at hand. With the Court currently evenly split ideologically between conservatives and liberals, this is also another example of what is at stake in the next Supreme Court appointment.

Compare Kagan and Sotomayor’s candor with Justice Kennedy’s invocation of the make-believe “abortion regret syndrome” in Gonzales v. Carhartor his use of the term “abortionist.” And then consider the Republican strategy of refusing to approve any new Supreme Court appointments writ large until after the presidential election becomes a little clearer. This next appointment may be the opportunity, should a Republican win a 2016 presidential election, to keep control over the highest court in the land for decades.

That also means this next appointment may be the first chance progressives have to wrestle the Court back to center from its rightward drift through the 1980s and today.

In that sense, it is fitting that the biggest abortion rights case the highest court has heard in years would end up before a likely deadlocked Court in the middle of a nasty election cycle. There is quite literally everything on the line for advocates in this case. Should the Court rule for Texas, the provisions will be fully enacted and the nation’s second-largest state will be left with only nine or ten clinics to serve the millions in need. The repercussions would ripple beyond Texas, affecting Louisiana, which would likely be left with only one clinic in the state, while Mississippi would have none left at all. And legislators everywhere else would feel emboldened to pass similarly restrictive laws to cut off abortion care.

So as much as progressives need Justice Kennedy’s vote, what we need even more is another progressive woman on the bench.

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