On Wednesday, the Supreme Court heard oral argument in Whole Woman’s Health v. Hellerstedt, the case challenging the very popular TRAP laws, designed to shut down abortion clinics with onerous and unnecessary regulations. Ian Millhiser reports that Justice Kennedy, the key vote, seemed very skeptical of those laws.
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.
There’s no doubt at all that these laws are for the sole purpose of closing abortion clinics. The advocates of them admit as much. Millhiser also notes that there’s a good possibility that the court decides not to rule on the merits of the case at this time and remands it back to a lower court for procedural reasons. That would delay things for a couple years. And if no justice is sat by the end of the term, it will probably be reargued once the court has nine justices anyway. But the fact that Kennedy seems skeptical of such laws is very good news and a sign that TRAP laws may not survive whenever the court rules on the merits.