WASHINGTON, DC — Whole Woman’s Health v. Hellerstedt is bigger than the Super Bowl if you are an abortion advocate. After years of watching state lawmakers chip away at abortion rights, Texas finally enacted an anti-abortion law so restrictive that lawyers representing abortion clinics decided they had to risk bringing the case before a conservative Supreme Court. When the Court took the case it appeared that, if Justice Anthony Kennedy — who typically votes to uphold abortion restrictions — sided with Texas, Roe v. Wade would effectively be dead.
That’s not going to happen anymore, in large part because the death of conservative Justice Antonin Scalia took away the fifth vote Texas needed to uphold its law. The good news for abortion advocates is that, after Wednesday’s oral argument, it doesn’t look like Texas has a fourth vote either. There is a very real procedural complication in this case that could delay its ultimate resolution, possibly for a couple of years. But if he has to reach the merits of this case, Kennedy appeared inclined to strike down the law.
Icky Kennedy vs. Casey Kennedy
Whole Woman’s Health involves two separate restrictions on abortion clinics and abortion providers. The first requires doctors to obtain admitting privileges in a hospital near the clinic where they perform abortions, a credential that is difficult to obtain and that, for reasons the four liberal justices brought up repeatedly in oral argument, does little to actually benefit women’s health. The second requires abortion clinics to comply with expensive regulations typically applied to “ambulatory surgical centers” in Texas, even if the particular clinic does not perform surgical abortions (many abortions are induced by medication women take orally).
Both provisions are based on model legislation drafted by Americans United for Life, an anti-abortion group that, according to its website, “works to advance life issues through the law and does so through measures that can withstand judicial obstacles so that pro-life laws will be enforced.”
Prior to Wednesday’s oral argument and Scalia’s death, however, it was an open question whether this law would actually “withstand judicial obstacles.” The question on most Court-watchers’ mind was which Justice Kennedy would show up to hear this case. On the one hand, Kennedy finds abortion icky — just read some of the gruesome descriptions of a particular abortion procedure in Kennedy’s opinion in Gonzales v. Carhart to get a sense of just how icky he regards it. On the other hand, Kennedy is unwilling to kill Roe outright. In Planned Parenthood v. Casey, Kennedy coauthored an opinion that limited abortion rights, but which also purported to retain “the essential holding of Roe v. Wade.” So the question on many Court-watchers minds before oral argument was whether Icky Kennedy or Casey Kennedy would show up to work today.
Icky Kennedy stayed at home. Though Kennedy did ask some tough questions about a procedural issue in this case, he largely remained silent as the liberal justices tore into Texas Solicitor General Scott Keller. And he asked a few questions on the merits that were critical of Keller’s arguments.
The liberal justices treated Texas’ arguments in much the same way that Holly Holm treated Ronda Rousey’s head. Justice Ruth Bader Ginsburg pointed out that it makes no sense to require clinics to comply with expensive requirements applied to surgical facilities if those clinics perform no surgeries. Justices Stephen Breyer and Sonia Sotomayor noted that Texas imposed these heavy burdens on abortion clinics, but did not impose them on facilities that perform riskier procedures. Colonoscopies, according to Breyer, are 28 times more likely to result in a complication than an abortion, but they do not need to be performed in an ambulatory surgical center.
Justice Elena Kagan, meanwhile, had one of the simplest and most disarming questions for Keller. After Keller repeatedly claimed that Supreme Court precedent gives Texas the right to treat abortion differently than all other medical procedures, Kagan responded by asking why Texas would make that choice where there are other, more dangerous procedures that go relatively unregulated. The unspoken subtext was that they real reason Texas passed the law was to shut down abortion clinics.
The Court’s liberals pressed Keller for what was probably a full ten minutes with these questions, and the Texas attorney had little response other than to note that abortions sometimes result in complications (in reality, such complications are extraordinarily rare). Throughout these exchanges, Justice Scalia’s absence was particularly palpable. The late justice liked to bail out conservative attorneys with softball questions when they got in trouble during an argument. But Scalia was not there to save Keller.
Kennedy was almost completely silent during these one-sided exchanges, although he did chime in with a few questions while Keller was at the podium. At one point, he suggested that Keller’s arguments lead to the conclusion that Texas’s law creates an “undue burden” on the right to obtain an abortion, a conclusion that, under Casey, would require the Court to strike the law down. At another point, Kennedy expressed concern that the law caused many women who would otherwise have medication abortions to instead receive surgical abortions, a shift that “may not be medically wise.”
So that’s the good news for Team Choice. If this case is decided on the merits, it appears very likely that Kennedy will vote to strike down the Texas law.
The Big Uncertainty
The bad news is that it is far from clear that the Court will reach the merits. For complicated reasons related to the fact that the admitting privileges and ambulatory surgical centers requirements were implemented on different schedules, the lower courts in this case ruled on a facial challenge to the first provision before fully considering the second one. Whole Woman’s Health came to the Supreme Court as an appeal from the second decision, and Texas argues that the plaintiffs are effectively precluded from pressing their facial challenge to the admitting privileges requirement at this stage of the litigation. Without diving into the very arcane nuances of this argument, it’s worth noting that this is a serious enough procedural complication that Justice Ginsburg raised it shortly after the lawyer for the plaintiffs’ took the podium.
During the Court’s discussion of this procedural issue, Kennedy raised the possibility of sending this case back down to the trial court so that it can engage in additional fact-finding that will help the justices sort through this issue. Should the Supreme Court ultimately go this route, it could delay final resolution of the case for as long as a couple of years. That’s not death to the abortion clinics in Texas, so long as the Texas law is stayed pending resolution of the case, but the possibility of more litigation undoubtedly hit abortion advocates with a thud as they contemplated two more years of fighting and uncertainty.
There’s also real danger to women seeking abortions if the Court focuses too intently on procedural barriers that could prevent them from reaching the merits of the case. During oral arguments, conservative Justice Samuel Alito repeatedly raised new procedural obstacles that he would impose on abortion plaintiffs, such as making them introduce very specific evidence into the record or requiring them to challenge each line of the many pages of regulations governing ambulatory surgical centers individually. “It will be work,” Alito noted archly, and much of the burden of that work will fall on abortion providers and their advocates.
In the meantime, however, Roemageddon appears to have been averted. The Court may have the votes to delay resolution of this case, but it almost certainly will not have the votes to uphold Texas’ law. And, should the justices put off deciding the case, Justice Scalia’s seat could very well be filled by someone who thinks much like Justice Ginsburg when the case returns.