Yesterday, the Supreme Court heard Whole Woman’s Health v Hellerstedt, an abortion case that will likely be far-reaching in its effects. At issue is the question of just how far states can go with TRAP laws—or, Targeted Regulation of Abortion Providers. In Planned Parenthood v. Casey (1992), the court upheld Roe v. Wade while also upholding restrictions on abortion. The ruling asked whether a regulation had the purpose or effect of creating an “undue burden” on women seeking abortions, and found that states could not create a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” However, they also upheld Pennsylvania’s 24 hour waiting period before obtaining an abortion as not creating an undue burden, thus opening the door for future such restrictions.
The question before the state now is whether or not Texas’ TRAP laws create an “undue burden” on women seeking abortions. The answer, of course, is a fairly transparent yes. These laws, after all, were created with the explicit intent of making it harder for women to access abortion services, and are heavily promoted by pro-life groups. Lawyers for the state argue that these laws were put into place simply to protect women’s health, but the Court’s female justices were having none of it.
When the Supreme Court last heard oral arguments in a landmark abortion case, it was April 1992, the case was Planned Parenthood v Casey, and Sandra Day O’Connor was the lone female justice.
Twenty-four years later, there are three women on the court. And if you count Justice Stephen Breyer as one of history’s great feminists—and I do—then you can view the arguments in this term’s landmark abortion case, Whole Woman’s Health v Hellerstedt, as creating a neat 4–4 split. On one side, you have a group of testy male justices needling a female lawyer for Texas clinics about whether it was even appropriate for them to hear this appeal. On the other, you’ve got four absolutely smoking hot feminists pounding on Texas’ solicitor general for passing abortion regulations that have no plausible health purpose and also seem pretty stupid.
It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules. Time limits were flouted to such a degree that Chief Justice John Roberts pretty much gave up enforcing them. I counted two instances in which Roberts tried to get advocates to wrap up as Justices Ruth Bader Ginsburg and Sonia Sotomayor simply blew past him with more questions. There was something wonderful and symbolic about Roberts losing almost complete control over the court’s indignant women, who are just not inclined to play nice anymore.
You can read the whole transcript of the hearings here, but I want to highlight some key moments for you, with some sparse commentary.
On Texas Abortion Clinic Closures
Justice Elana Kagan had an shining moment with regards to clinic closures. Stephanie Toti, a lawyer from the Center for Reproductive Rights, was questioned by the conservative justices for some minutes, as they contended that there was no evidence that Texas’ abortion clinic closures were related to the new TRAP laws. Finally, tiring of this angle of discussion, Kagan broke in.
JUSTICE KAGAN: Ms. Toti, could I— could I just make sure I understand it, because you said 11 were closed on the day that the admittingprivileges requirement took effect; is that correct?
MS. TOTI: That’s correct.
JUSTICE KAGAN: And is it right that in the twoweek period that the ASC requirement was in effect, that over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately; is that right?
MS. TOTI: That that is correct, Your Honor. And—and —
JUSTICE KAGAN: It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it? It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.
Word. “Almost like” indeed.
On the Two Types of Abortions
Justice Sonia Sotomayor spent some time asking pointed questions about the two different types of abortion used during the first trimester. Her point about the oddity of requiring pills to be taken within an ambulatory surgery center—along with her point that D&C procedures are performed in doctor’s offices for non-abortion reasons all the time—was spot on.
JUSTICE SOTOMAYOR: Can I walk through the burden a moment? There’s two types of early abortion at at play here. The medical abortion, that doesn’t involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?
MS. TOTI: Under Texas law, she must take them at the facility, but—but that is otherwise correct.
JUSTICE SOTOMAYOR: I’m sorry. What? She has to come back two separate days to take them?
MS. TOTI: That’s correct, yes.
JUSTICE SOTOMAYOR: All right. So now, from when she could take it at home, it’s now she has to travel 200 miles or pay for a hotel to get those two days of treatment?
. . .
JUSTICE SOTOMAYOR: The second is the D&C, the dilation and—what’s it called? Dilation and—
MS. TOTI: Curettage.
JUSTICE SOTOMAYOR: —curettage. What is the risk factor for a D&C related to abortion and a nonabortion D&C? D&Cs are performed in offices for lots of other conditions besides abortion. Is there any evidence in the record that shows that there is any medical difference in the two in the —in the procedures that would necessitate an abortion being in an ASC or not, or are abortions more risky than the regular D&C?
MS. TOTI: No, Your Honor. The evidence in the record shows that the procedures are virtually identical, particularly when D&C is performed to complete a spontaneous miscarriage. So when a woman miscarries and then follows up with her doctor, the doctor will typically perform a D&C. And that’s that’s virtually identical to an abortion, but it’s not subject to the the requirements of HB2.
JUSTICE SOTOMAYOR: So your point, I’m taking, is that the two main health reasons show that this law was targeted at abortion only?
. . .
JUSTICE SOTOMAYOR: I’m sorry. Is there any other medical condition by taking the pills that are required to be done in hospital, not as a prelude to a procedure in hospital, but an independent, you know—I know there are cancer treatments by pills now. How many of those are required to be done in front of a doctor?
MS. TOTI: None, Your Honor.
Sotomayor clearly did her homework before the hearing!
On Travel Distance to the Clinics
Scott Keller, the Texas solicitor general defending the TRAP laws, worked hard early on to downplay the distance many Texas women must travel to obtain abortions. Justice Elena Kagan refused to let him get away with that.
JUSTICE GINSBURG: Well, how many women are located over 100 miles from the nearest clinic?
MR. KELLER: Justice Ginsburg, JA 242 provides that 25 percent of Texas women of reproductive age are not within 100 miles of an ASC. But that would not include McAllen that got as-applied relief, and it would not include El Paso, where the Santa Teresa, New Mexico facility is.
JUSTICE SOTOMAYOR: It includes —
JUSTICE GINSBURG: That’s—that’s odd that you point to the New Mexico facility. New Mexico doesn’t have any surgical—ASC requirement, and it doesn’t have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things. But send them off to Mexico—New Mexico—New Mexico where they don’t get it either, no admitting privileges, no ASC. And that’s perfectly all right. Well, if that’s all right for the—the women in the El Paso area, why isn’t it right for the rest of the women in Texas?
. . .
MR. KELLER: In any event, over 90 percent of Texas women of reproductive age live within 150 miles of an open clinic as of today.
JUSTICE KAGAN: Mr. Keller, the—the statistics that I gleaned from the record were that 900,000 women live further than 150 miles from a provider; 750,000, three-quarters of a million, further than 200 miles. Now, that’s as compared to just in 2012, where fewer than 100,000 lived over 150 miles, and only 10,000 lived more than 200 miles away. So we’re going from, like, 10,000 to three-quarters of a million living more than 200 miles away.
Pill Abortions and Hospital Proximity
Keller waxed on about the importance of having women take medical abortion pills in an abortion clinic, with a doctor with admitting privileges at a hospital within a 30 mile radios, but Justice Ruth Bader Ginsburg would have none of it. She pointed out out that women who have complications from medical (pill) abortions are likely not going to experience those complications until they’ve retuned to their home communities, as the pills take time to take effect.
JUSTICE GINSBURG: I’m not—I’m not talking about the prior lawsuit; I’m talking about this lawsuit. You need to have access to a hospital within 30 miles. 30 miles of what? 30 miles of the surgical center when the woman lives at a much greater distance? And if she’s going to go to any hospital, it will be in her local community, not near the surgical center.
. . .
JUSTICE GINSBURG: And—and just it’s—I can’t imagine. What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?
MR. KELLER: Well, there would be surgery in a complication. And all abortion clinics in Texas perform surgical abortions, and that’s why Petitioners probably didn’t defend that aspect of the judgment.
JUSTICE GINSBURG: If it is a complication, it is not going to occur on the spot. I mean, you have to concede that in—in the case of the medical abortion, the complication generally arises after the woman is back at home. And then the nearest hospital has nothing to do with the surgery center.
What I love most about the above section is that Ginsburg seems genuinely upset for the women who have to deal with these restrictions.
On Admitting Privileges
Next Justice Stephen Breyer stepped in, pointing out that hospitals accept all patients whether or not their prior doctor has admitting privileges and arguing that the state took action to fix a nonexistent problem. He also noted that colonoscopies are 28 times riskier than abortions, and yet do not have to be performed in ambulatory surgery centers.
JUSTICE BREYER: Okay. So I want to know, go back in time to the period before the new law was passed, where in the record will I find evidence of women who had complications, who could not get to a hospital, even though there was a working arrangement for admission, but now they could get to a hospital because the doctor himself has to have admitting privileges? Which were the women? On what page does it tell me their names, what the complications were, and why that happened?
MR. KELLER: Justice Breyer, that is not in the record.
JUSTICE BREYER: Judge Posner then seems to be correct where he says he could find in the entire nation, in his opinion, only one arguable example of such a thing, and he’s not certain that even that one is correct. 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, though perhaps there is one, but not in Texas.
MR. KELLER: Justice Breyer, the National Abortion Federation previously recommended that women use abortion doctors—
JUSTICE BREYER: I didn’t ask that. I’m sure there are people who had all kinds of reasons that would like to have this and so forth. And I’m not I’m just asking you, where we have a judicial duty to say whether this is an undue burden upon the woman who wants the abortion, there are two parts: Is she burdened and what is the benefit? And now on the first one, I’ve asked you to give a single example of an instance where there was a benefit, and you say, I think quite honestly, there is no such burden.
So let’s turn to the second. The second one, according to the amicus briefs here, which I guess I could validate, that even without the surgical center, leave it out, there are risks quite correct. Those risks are roughly the same as the risks that you have in a dentist office when you have some surgery, where you don’t have an ambulatory surgical center. There are 28 times less than a risk of a colonoscopy, where you don’t have ambulatory surgical center. There are like hundreds of times less you’ve seen these briefs. Okay. So I read them, and you read them.
And so what is the benefit here to giving, I mean, the woman, her risk, I can’t say it’s zero here, this ambulatory surgical center when the risk is minuscule compared to common procedures that women run every day in other areas without ambulatory surgical centers?
This is the biggest problem I have with those who argue that TRAP laws are really about women’s health, not abortion—if that were so, the legislature would act to protect women’s health across the board, requiring ambulatory surgery centers for procedures like liposuction, but—you guessed it—they don’t.
Ginsburg on the “Protecting Women’s Health” Excuse
Justice Ginsburg asks what the purpose of this law is, given that abortion is an extremely low-risk procedure, and her response to Keller’s non-answer was beautiful. Coincidentally, did you know that birthing centers are far less regulated than abortion clinics, even though their rate of complications and fatalities is far, far higher? Check out the difference between Oklahoma’s regulations for birthing centers and its regulations for abortion clinics, for instance—the state requires abortions clinics to be licensed, but makes that optional for birthing centers. Those priorities are . . . interesting. But enough of me! Let’s listen to Justice Ginsburg!
JUSTICE GINSBURG: But what is the legitimate interest in protecting their health? What evidence is there that under the prior law, the prior law was not sufficiently protective of the women’s health? As I understand it, this is one of the lowest-risk procedures, and you give a horrible from Pennsylvania, but absolutely nothing from Texas. As far as we know, this is among the most safe, the least-risk procedures, an early-stage abortion. So what was—what was the problem that the legislature was responding to that it needed to improve the facilities for women’s health?
MR. KELLER: In Petitioner’s first lawsuit, Planned Parenthood admitted that over 210 women annually are hospitalized because of abortion complications. Here at JA 266—
JUSTICE GINSBURG: As compared to childbirth, many, many—much riskier procedure, is it not?
Believe it or not, Keller contested this. No one bought it. In fact, the audience met his claim with laughter, which is exactly the response it deserved.
Sotomayor on the “Protecting Women’s Health” Excuse
Justice Sotomayor wasn’t willing to let Keller get away with his claim that the purpose of the legislature inc reading the state’s TRAP laws was to protect women’s health, and she kept pushing until she had amply made her point.
JUSTICE SOTOMAYOR: I don’t mean to—to negate that one should try to avoid injury to anyone, and—and don’t take my question as that, but there are people who die from complications from aspirin. 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.
MR. KELLER: But in examining—
JUSTICE SOTOMAYOR: There has to be some tie between the benefit and the burden, doesn’t there?
MR. KELLER: In examining not effect, but the purpose. The constitutional analysis would be did the Texas legislature have an invalid purpose? And if you—
JUSTICE SOTOMAYOR: Well, don’t you think that you can read that from the fact that there are so many other medical treatments whose complication rates are so disproportionately higher, and the legislature is only targeting abortion when there is nothing about the figures before it that show a risk so unusual that it needs greater attention?
“Don’t you think” indeed is a nice way to say “This is patently obvious.”
Breyer on the “Protecting Women’s Health” Excuse
At this point Justice Breyer took over for Sotomayor, and made an eloquent point about the potential threat to women’s health TRAP laws like Texas’ actually pose.
JUSTICE BREYER: But the—the—what their purpose is, that they’re worried about these complications and they want to make life safer for the women. All right? Let’s take that as the purpose. You said there aren’t very many complications. Now, would you say if you reduce the number of clinics, as has been argued maybe it isn’t exactly that, but that and you you suddenly have at least 10,000 maybe a few less, and maybe a few more women who have to travel 150 miles to get their abortion maybe more, maybe stay overnight, maybe try to scrape together the money, you understand the argument are there going to be more women or fewer women who die of complications due to an effort to create an abortion?
I mean, you read the briefs, and you’ve read the same articles I have. And of course the argument is if you lead to self-induced abortion, you will find many more women dying. So if the concern is this tiny risk of dying through a complication in a clinic, is this a remedy that will in fact achieve the legislature’s health-saving purpose?
Keller responded by saying that some of those clinics were going to close anyway, which in my book is what we call failing to answer the question.
Kagan on the “Protecting Women’s Health” Excuse
When Justice Kagan finally got into the action, she was on fire.
JUSTICE KAGAN: General, could—could I ask could I go back to a question that—something that you said earlier? And tell me if I’m misquoting you. You said that as the law is now, under your interpretation of it, Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work. And you said that that was your understanding of the law; am I right?
MR. KELLER: Correct, in this Court’s—in Simopoulos.
JUSTICE KAGAN: And I guess I just want to know why would Texas do that?
MR. KELLER: When there are complications from abortion that’s in the record, Texas can enact laws to promote safety.
JUSTICE KAGAN: No, I know, but—but the assumption of the question, and I think you haven’t challenged this assumption, is that there are many procedures that are much higher risk: Colonoscopies, liposuctions, we could go on and on. And and you’re saying, that’s okay, we get to set much higher standards for abortion. And I just want to know why that is.
Keller responded by arguing that the laws were passed in the wake of the Kermit Gosnell affair, but Kagan pointed out that Texas already had laws in place to prevent such cases, including regular inspections. She pushed back, and hard, and refused to let the question slide.
The court’s ruling in this case will be announced in June. If it is a tie, the lower court’s ruling will be upheld. That leaves things squarely in Justice Kennedy’s hands. Justices Kagan, Sotomayor, Ginsberg, and Breyer have not been shy about where they stand with their questions. Justice Thomas was silent, as is typical, but he’s almost certainly going to side with Justices Roberts and Alito, whose pointed questions about the reasons the clinics failed and the rate of complications from abortions make their position as clear as that of the court’s liberal wing.
For his part, Justice Kennedy asked fewer questions, and his position is less clear. In my read, Kennedy appears to be not entirely comfortable with the TRAP laws, but also willing to be be convinced to support them—if he could be assured that the abortion clinics that have met the ambulatory surgery center requirements are enough to meet the state’s demand. But then, I’m not a seasoned court-watcher and am not as familiar with Kennedy as are many others! It appears that the issue may come down to questions like what constitutes an “undue burden” and the extent to which legislative intent matters.
Still, I can wait more patiently for the decision knowing that Justices Kagan, Sotomayor, Ginsberg, and Breyer are not going to go down without a fight. They all four appear to be well-read and knowledgeable in this subject, and to understand the importance of the issue before them. They have my hearty appreciation!