No clear sign from Supreme Court how it will rule on Texas abortion law

Supreme Court justices sparred furiously Wednesday over a controversial Texas abortion clinic law, clarifying their stark differences but leaving the final outcome in question.

Confronting the court’s first abortion case since 2007, liberal and conservative justices largely articulated their expected positions while pivotal Justice Anthony Kennedy remained a bit more opaque.

The end result, on an eight-member court left shorthanded by the death last month of conservative Justice Antonin Scalia, could prove anti-climactic if justices kick the case back for more fact-finding. At the least, though, the unusually long 80-minute oral argument illuminated the court’s sharp divide and the topic’s enduring power.

Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer, all Democratic appointees, repeatedly pressed Texas Solicitor General Scott A. Keller about what medical benefits the Texas law provides and what burden it imposes on women’s constitutionally protected abortion rights.

“According to you,” Sotomayor asked Keller, “the slightest health benefit is enough to burden the lives of a million women. That’s your point?”

From the right, Chief Justice John Roberts Jr. and, in particular, Justice Samuel Alito pressed questions and made statements sympathetic to the 2013 Texas law known as House Bill 2.

“I read through those regulations,” Alito said of the measure. “I was surprised at how many are completely innocuous.”

At another point, Roberts seemingly tipped his hand when he asked Stephanie Toti, the attorney for Whole Woman’s Health and other challengers of the law, “How is that logical?”

A third Republican appointee, Justice Clarence Thomas, reverted to his customary practice of asking no questions, but he is an inveterate supporter of laws restricting abortion.

This court arithmetic likely leaves the resolution of the case up to Kennedy, the 79-year-old justice who often acts as a swing vote.

Raising the possibility of passing the buck, for now, Kennedy asked Keller whether it would “be appropriate to remand” the case so a lower court could pin down firm answers to some factual questions, including how the Texas law has affected the state’s abortion “capacity.”

“We had the liberal-conservative breakdown in the court that you would expect among the justices,” Roger Severino of the conservative Heritage Foundation said after the argument, “but Justice Kennedy, in the few questions he asked, showed some hesitation about courts second-guessing the state’s ability to regulate abortion clinics.”

The case, styled Whole Woman’s Health v. Hellerstedt, is a challenge to several provisions of House Bill 2. Whole Woman’s Health operates abortion-providing clinics in Fort Worth, San Antonio and McAllen, a border city about 150 miles south of Corpus Christi. Their opponent in the case, Dr. John Hellerstedt, is commissioner of the Texas Department of State Health Services.

One challenged provision requires abortion clinics to meet the same standards as ambulatory surgical centers. Standards range from a minimum square-footage requirement to rules covering plumbing, heating, lighting and ventilation. Another challenged provision requires doctors performing abortions to have admitting privileges at hospitals within 30 miles.

“Texas acted to improve abortion safety,” Keller said, adding that “abortion is legal and accessible in Texas.”

The liberal justices, though, repeatedly voiced skepticism about the Texas Legislature’s true motivation in passing House Bill 2, with several noting that procedures such as colonoscopies and liposuction carry greater risk than abortion yet don’t require these tighter regulations.

“There are many procedures that are much higher-risk,” Kagan told Keller, “and you’re saying, ‘That’s OK, we get to set much higher standards for abortion.’ And I want to know why that is.”

In a 1992 case arising from Pennsylvania, Kennedy joined the opinion that states can regulate abortion but cannot impose “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” This is called the “undue burden” test.

Kennedy and Thomas are the only justices still serving who took part in that Pennsylvania case.

Attorneys for Whole Woman’s Health say the Texas law imposes an undue burden because it “would close more than 75 percent of Texas abortion facilities and deter new ones from opening.” Before 2013, more than 40 licensed abortion clinics operated in Texas. Now there are fewer than 10.

“These are unnecessary regulations that create a substantial obstacle,” Toti said.

Underscoring Toti’s point, Kagan noted that an estimated 900,000 Texas women of child-bearing age live more than 150 miles from licensed abortion providers. Alito countered that “we don’t really know” what the state’s abortion capacity is.

Solicitor General Donald Verrilli Jr., representing the Obama administration in support of Whole Woman’s Health, reported that 65,000 to 75,000 abortions per year were provided in Texas before House Bill 2 passed. The clinics remaining open under the law can provide about 14,000 abortions a year.

The legal drama inside was matched by the theatrics outside, which followed the standard script for potential landmark cases. The first would-be spectators showed up Monday to form a line that wrapped around the block by Wednesday morning.

Sign-toting activists from all sides congregated around the court, many having traveled far for the opportunity. Outreach officer Bonyen Lee-Gilmore came from Planned Parenthood of Kansas and Mid-Missouri, for instance, along with a Columbia, Missouri, woman who’d had two abortions in that city’s clinic before it lost the ability to perform the procedure when Missouri passed a similar law.

A lower appeals court upheld the Texas law. If the Supreme Court ties 4-4, the earlier ruling would stand and the Texas law would survive but no national precedent would be set.

The justices could also avoid a deadlock and order the case re-argued once Scalia’s seat is filled and the court is back to nine members. A decision is expected by the end of June.

This story was originally published March 2, 2016 at 2:54 PM with the headline "No clear sign from Supreme Court how it will rule on Texas abortion law."