WASHINGTON (CN) – The women of the Supreme Court had a lot to say Wednesday morning about a Texas law that could cut off abortion access for millions of Americans.
“According to you, the slightest health improvement is enough to impose on hundreds of thousands of women – even assuming I accept your argument, which I don’t necessarily because it’s being challenged – but the slightest benefit is enough to burden the lives of a million women,” Justice Sonia Sotomayor thundered at Texas Solicitor General Scott Keller. “That’s your point?”
With the cheers of protesters outside occasionally piercing though his argument, Keller urged the justices to uphold a 2013 Texas law challengers say unduly burdens women’s ability to acquire an abortion.
The court has not said much about the issue since 1992 and appeared divided along partisan lines for this morning’s hearing – both camps voicing frustration over a factual record they said failed to demonstrate the law’s impact either way.
House Bill 2 requires that abortions be done in a hospital-style surgery center, and that abortion doctors have admitting privileges at a hospital within 30 miles.
Keller faced a skewering by the court’s four liberal justices, three of whom are women, as to how such provisions improve patient safety in the nation’s second most populous state.
Saying Texas offered no proof that the law is medically justified, the female justices clamored for evidence that it does not place an undue burden on women seeking an abortion.
Justice Elena Kagan noted that about 10,000 Texas women lived further than 200 miles from an abortion clinic in 2002. The number has spiked since then to 750,000.
The American Medical Association and the American College of Obstetricians and Gynecologist each filed briefs in support of the challenger, a nonprofit called Whole Woman’s Health, stating that laws are unnecessary and put women’s health at risk.
Against these expert opinions, Keller said “some doctors do believe that there are benefits for the ASC and admitting-privileges requirement,” abbreviating ambulatory surgical center.
Though the Center for Reproductive Rights counted a drop in Texas abortion clinics – from 42 to 19 – since the HB 2’s passage, the conservative justices said Whole Woman’s Health failed to show that the Texas law was responsible.
“There is very little specific evidence in the record in this case with respect to why any particular clinic closed,” said Justice Samuel Alito. “Basically, your argument is that the law took effect, and after that point, there was a decrease in the number of clinics.”
Representing the nonprofit challenger at the hearing, Center for Reproductive Rights attorney Stephanie Toti said her clients have testified at length to this very issue.
“The plaintiffs testified that clinics closed in anticipation of enforcement in some cases, and in some cases because of actual enforcement of the requirements,” Toti said.
Alito pressed back, citing a Huffington Post article that attributed the closure of a Planned Parenthood clinic in Texas to budget cuts for family-planning services under the 2011 Texas Women’s Health Program bill, not the current law under review.
Toti responded that she has direct evidence for 12 of the shuttered clinics that link their closures to the HB 2.
Justice Elena Kagan bolstered Toti’s argument, noting that 11 Texas clinics closed the day the admitting-privileges requirement of the law took effect, while more than a dozen shut their doors in the two-week period after that. When the Supreme Court blocked the Texas law with a stay last year, those clinics reopened, Kagan said.
“It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” Kagan pondered. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”
Justice Anthony Kennedy suggested sending the case back to the lower courts to gather more evidence, particularly in relation to the capacity of the remaining clinics, and the capability to build clinics that would meet the requirements.
But Toti responded that prohibitive costs “will deter new clinics from opening to take the place of the ones that closed.”
Supporting Toti’s argument, U.S. Solicitor General Donald Verrilli Jr. told the court that the remaining facilities will be able to perform only 14,000 abortions per year, compared with 65,000 to 75,000 prior to the law’s implementation.
This would require remaining clinics to increase abortions significantly in a very short time, something those clinics will not be able to do, he said.
Alito pressed the challengers on their failure to include specific numbers of abortions performed at each clinic and their actual capacity – statistics Toti said are included in the record.
Dismissing claims by Texas that it is improving women’s reproductive health care, Toti said the law will increase later-term and self-induced abortions, thereby increasing the health risks women who seek an abortion will face.
Justice Sotomayor zeroed in on early-term abortions, questioning why Texas wants medical abortions, or abortion-by-pill, performed in a hospital-style surgery center.
Toti said there is no evidence in the record to support the necessity of “having a medication abortion at a multimillion-dollar surgical facility.”
“So your point, I’m taking, is that the two main health reasons show that this law was targeted at abortion only?” Sotomayor asked.
“That’s absolutely correct,” Toti said.
Though Chief Justice John Roberts seemed eager to hurry Sotomayor along, she continued her line of questioning about requirements regulating similar procedures, including cancer treatments by pills.
“There are no other medication requirements and no other outpatient procedures that are required by law to be performed in an ASC,” Toti said, abbreviating ambulatory surgical center.
Keller’s argument that the law helps Texas protect women suffering abortion complications drew the court into the issue of legislative justification.
“What evidence is there that under the prior law, the prior law was not sufficiently protective of the women’s health?” Justice Ruth Bader Ginsburg asked. “As I understand it, this is one of the lowest-risk procedures.”
Justice Stephen Breyer asked Keller for examples of instances where women – prior to the law’s implementation – had abortion complications and could not get to a hospital.
“Justice Breyer, that is not in the record,” Keller said.
“So what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation,” Breyer asked.
Breyer said abortion-complication risks are on par with dental surgery, and 28 times less than the risks from colonoscopies, which Texas does not require be performed in a hospital-style surgery center.
Keller fell flat with his assertion that 210 women are hospitalized every year from abortion complications.
“There are people who die from complications from aspirin,” Sotomayor retorted. “May be unusual, but there’s a certain percentage that do that. Yet, we don’t require that people take aspirins in ASC centers or in hospitals.”
Breyer interjected to soothe Keller a bit, stating that he did not question Keller’s stated purpose for the law: making women safer.
The justice did, however, question whether the law would meet that goal.
Justice Clarence Thomas remained silent at the hearing, despite having just this week asked questions from the bench for the first time in 10 years.
Throughout the proceedings, Thomas did exchange quiet words with Breyer, the justice seated beside him.
Keller told the court that Texas was one of several states that saw the Kermit Gosnell scandal as impetus to revamp abortion laws.
Gosnell ran a filthy clinic in Philadelphia, Pa., that provided illegal abortions, and was convicted of murder for killing three babies born alive during abortion procedures.
Though the Fifth Circuit upheld Texas’ abortion restrictions last year, the Supreme Court stayed that ruling’s effect pending today’s hearing on the merits.
With the bench now one member short after the death last month of Justice Antonin Scalia, a 4-4 split would leave the Fifth Circuit’s ruling in place.
The Center for Reproductive Rights says this could shutter all but about 10 of the remaining abortion clinics in Texas, and set the precedent for other states to follow suit.
Keller emphasized that abortion in Texas remains “legal and accessible.”
“All the Texas metropolitan areas that have abortion clinics today will have open clinics if the court affirms, and that includes the six most populous areas of Texas,” he said.
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