With thousands of abortion supporters (and exponentially fewer abortion opponents) rallying outside on a crisp early March morning, the Supreme Court heard oral arguments Wednesday in the biggest abortion case to reach the high court in decades. The justices appeared sharply divided on the case, but possibly not on the issues that most people expected. Though the outcome will likely remain uncertain until late June, Wednesday’s hearing made perfectly clear the stakes in the upcoming presidential election regarding the makeup of the Supreme Court.
Rolling Stone was at the Supreme Court for arguments Wednesday. Here’s what happened inside the courtroom, where, as we know, cameras are not allowed.
The case involves a challenge to HB 2, the Texas law that requires abortion doctors to obtain admitting privileges at a local hospital, and abortion clinics to meet the burdensome requirements of an ambulatory surgical center, basically making them mini-hospitals. Texas has attempted to justify the law as a way to protect women from the dangers of abortion. But abortion clinics in Texas, including lead plaintiff Whole Woman’s Health, argue that the law has no real medical justification and unduly burdens almost a million women in the state who will have to drive hundreds of miles to obtain an abortion now that the law has shut down over three-quarters of the state’s clinics. (Read more background on the case here.)
Several of the justices Wednesday, including “swing vote” Justice Anthony Kennedy, were concerned that the case amounts to a second bite at the apple for the clinics. (Planned Parenthood had previously brought a case fighting part of the law, though that case did not make it to the Supreme Court.) The clinics argued that they didn’t know just how burdensome the law would be until clinics actually closed.
Justice Kennedy, along with conservative Chief Justice John Roberts, pressed for specifics about whether the clinics that have closed in Texas did so because of HB 2 or because of other reasons. They wanted direct evidence that HB 2 was the reason for the closures, and even suggested at one point that the case should be sent back to the lower courts to develop that evidence.
After about 15 minutes of questions along these lines, Justice Ruth Bader Ginsburg finally turned the attention to the merits of the case. Roberts asked a few questions about whether the state had a rational basis for the law, and then the liberal justices took over the argument — and they may just have brought Kennedy along for the ride.
The stars of this part of the day were Justices Elena Kagan and Sonia Sotomayor. Together, they drilled home the absurdity of Texas’ argument about protecting women’s safety. The heart of their argument was that abortion, a common and very safe medical procedure, was being singled out for different treatment than much riskier out-patient procedures and in a way that made no medical sense. The Texas attorney at the Court Wednesday had no response other than to say that Texas is allowed to make that distinction.
Sotomayor pressed this position forcefully. At one point, Justice Stephen Breyer asked whether the state had passed the law in reaction to any found medical issues, and lawyers for the state responded by arguing that it intended to reduce the 210 complications per year related to abortion (from over 70,000 procedures). Sotomayor was not impressed, joking that while she isn’t very good at math, that seemed like a small percentage to her. She then peppered the state’s lawyers with questions about why Texas doesn’t go after other, riskier medical issues, such as colonoscopies, which are 28 times riskier than an abortion.
Kagan’s line of questioning was different. Texas’ basic position is that it is allowed to enact almost any laws that increase safety, even if just a little. Kagan put forth a hypothetical law that would require all abortions in Texas to take place in hospitals identical to one of the leading facilities in the country, Massachusetts General. She asked the lawyers for the state whether Texas could do that — the hospital is of such high quality that it would obviously be better for women’s health, right? The Texas lawyers again had no real response, pointing again to the 210 complications. None of the justices seemed impressed with that answer.
Along with Breyer, who was highly skeptical of the benefit from HB 2, and Ginsburg, who could not understand the value of the law for medical abortion in particular, Justices Kagan and Sotomayor’s rapid-fire, incisive questions may just have swayed Justice Kennedy. He was mostly silent on the merits, but did speak up to ask Texas whether its law’s effect would undermine its purpose. He noted that now medical abortions have to take place in surgical centers (rather than at home) and that many women who would have been able to access medical abortion before HB 2 will be delayed and have to have surgical abortions. He was concerned that this would decrease medical abortion in Texas and increase surgical abortion, which is the opposite of the nationwide trend and seemed, to him, less safe for women. Texas’ response, once again, was to point to the 210 complications. Kennedy didn’t seem satisfied with their simplistic response.
As expected, the other justices gave no indication of supporting the clinics’ position. Justice Clarence Thomas extended his new questionless streak to two days. Other than stressing that the state had a rational basis for the law, Roberts asked only one non-consequential question on the merits. Only Justice Samuel Alito really voiced arguments supporting the law, which was both no surprise and largely overshadowed by the Court’s liberals.
As always, predicting the outcome based on oral argument is a risky business. It’s hard to see a five-justice majority deciding to punt the case on procedural issues, though a four-four split based on procedure is certainly possible (which would affirm the lower court and leave the Texas law almost entirely in effect). It’s easier to see a 5-3 decision with the liberals and Justice Kennedy agreeing with the clinics that the law is medical nonsense that creates a massive obstacle for many Texas women.
Wednesday provided a good reminder for American voters heading into the 2016 election: All four justices appointed by Democrats (Ginsburg, Breyer, Sotomayor and Kagan) were on fire, making smart and oftentimes biting arguments showing the nonsense behind Texas’ position, while the Republican-appointed justices (Roberts, Kennedy, Thomas and Alito) were entirely different. If nothing else, the arguments drove home the point that presidential elections matter immensely because of the Supreme Court, especially with one current vacancy on the Court and three other seats held by justices who will be 78 or older by the time the next president takes office.