Appears skeptical

Justice Kennedy appears skeptical of Texas abortion limits

A tie vote could limit the reach of a ruling — or postpone it.

By Jennifer Haberkorn and Josh Gerstein

A Texas law strictly regulating abortion clinics appears to be in danger of being struck down, judging by exchanges Wednesday during oral arguments at the Supreme Court.

Justice Anthony Kennedy — the likely swing vote in Whole Woman's Health v. Hellerstedt, the most significant abortion case to reach the court in a generation — questioned whether the burdens imposed by the law might be unconstitutional because they outweigh medical benefits. The state law makes abortion clinics meet surgical center requirements and requires doctors performing abortions to have admitting privileges at a nearby hospitals.

The case addresses how far states can go in regulating abortion — and it comes after several years of heightened state restrictions. It unfolds in the middle of a volatile presidential campaign where abortion rights and Planned Parenthood funding have emerged as central issues.

In the oral arguments that lasted more than the scheduled hour, a lawyer representing Texas said the state had wide latitude to impose regulations aimed at protecting women's health, but Kennedy appeared to argue that the purported benefits had to be assessed by the courts.

"Doesn't that show the undue burden test is weighed against what the state's interest is?" asked Kennedy, who was one of the authors of a landmark 1992 decision in Planned Parenthood vs Casey that said states could not impose an "undue burden" on a woman seeking to terminate a pregnancy.

Texas officials have said these rules were enacted specifically to protect women's health. Many leading medical organizations including the main national obstetrics and gynecology groups say they are not medically necessary.

But Kennedy's stance was far from clear based on his questions. At one point he raised the prospect of sending the case back to a lower court for more evidence of the link between the law and clinic closures across Texas.

“Would it be A) appropriate and B) helpful for this court to remand [the case] for further findings on clinic capacity?" Kennedy asked.

Returning the case to a lower court could allow both sides to submit more evidence about the law’s impact. But it seems unlikely the liberal justices would allow that without keeping in place a temporary stay that has blocked some of the law from taking effect.

Chief Justice John Roberts and Justice Samuel Alito also wanted to see evidence on whether the law had actually limited women's access to abortion. They said the record did not establish that any clinic closures were directly related to the new law, and if so which parts of the legislation were responsible. They also appeared to find a lack of evidence that clinics remaining open couldn’t take up the slack.

The decision is likely to come in June. But it's not certain that after Antonin Scalia's death, the eight justices can form a five-vote majority needed to set a precedent. Nor, if Kennedy ultimately comes down in favor of returning the case to the lower court and convinces his three conservative colleagues to go along, is there an apparent fifth vote to join them.

The four liberal justices came to the defense of the abortion clinics, quizzing Texas Solicitor General Scott Keller on whether there is a medical justification for more stringent standards for abortion clinics than for other outpatient centers, such as those that perform liposuction or colonoscopies.

“Legislatures react to matters that are of public concern,” Keller said. “The legislature can act to make abortions safer.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor asked why it would be safer to have a women take the pills for a medication abortion in a surgical suite versus a regular doctor’s office. Keller said that surgery may be needed in case of a complication (although when a complication does occur, it is far more likely to happen later).

The Obama administration, arguing in support of the clinics, said the Texas law runs afoul of longstanding Supreme Court precedent on abortion rights.

“Ultimately, the question before you here is whether the right [to abortion] is going to retain real substance,” said U.S. Solicitor General Don Verrilli. He called the Texas law “the definition of an undue burden."

Stephanie Toti, a Center for Reproductive Rights attorney who argued for the clinics, said the law's impact would be dramatic, a "one, two punch" that would lead to the closure of 30 clinics.

Toti said the combination of the surgical-center provision and the admitting-privileges rule had dramatically reduced the availability of abortion in Texas — at least before a federal judge stepped in and halted portions of the law from going into effect.

Toti had difficulty getting into the substance of her argument after both liberal and conservative justices tripped her up with procedural questions and queries about the evidence. That discussion chewed up almost all of her allocated 20 minutes, prompting Roberts to give her another five minutes to address the heart of the legal dispute.

“You’re not talking about a large number of facilities. I really don’t understand why you could not put in evidence about why they closed,” Alito said. He said the court already has such facts about a similar Louisiana law the justices are considering halting.

Justice Elena Kagan said the fact that a dozen clinics closed on the day the surgical-center provisions kicked in — and opened again after a judge blocked the law — was pretty strong evidence.

“It was almost a perfect controlled experiment,” Kagan said. “You put the law into effect 12 closed. You took the law out of effect, they reopened.”

Kennedy also appeared concerned that even if women could reach the remaining clinics, the facilities would not have the capacity to provide abortions for all the women seeking them.

After Verrilli said the clinics that meet the new requirements account for about 14,000 of 70,000 abortions being done in Texas annually, Kennedy chimed in.

That’s “about 20 percent,” Kennedy noted, nodding.

However, Alito said there was no indication in the court record that the remaining clinics couldn’t meet the demand.

“There’s no evidence of the capacity of these clinics,” Alito said. “We don’t really know what the capacity of these clinics are. … It’s not based on any hard evidence.”

Keller agreed. “The inference they were at capacity cannot be drawn.”

However, Verilli said it was obvious that clinics doing 20 percent of the abortions in Texas could not suddenly perform the other 80 percent. “It’s common sense,” he said.

At a couple of points, Breyer sounded like he was open to some of the conservatives’ arguments. He pursued a question about whether evidence was lacking, and later appeared to say that he accepted that the purpose of the Texas measure was to protect women.

But Breyer also appeared to embrace an opinion issued last year by renowned 7th Circuit Judge Richard Posner who said the admitting-privileges requirement was aimed at fixing a problem with getting women emergency treatment that either had never occurred or may have affected one women in the history of the U.S.

“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?" Breyer asked. He called the risks from an abortion “minuscule compared to common procedures” that are regularly done in doctors’ offices.

Keller said it didn’t matter if Texas chose to single out abortion. “The Legislature can still act to make abortion safer, which is what Texas did here,” he said.

Justice Elena Kagan suggested the Legislature could not set safety standards so onerous that they dramatically reduced access to abortion. “Can the Legislature say anything?” she asked.

“Could they say every abortion clinic has to meet the standard of MGH?" using shorthand for the illustrious Massachusetts General Hospital.

Much is riding on this case for both sides, but the death of Scalia dramatically limited the possible outcomes. Given the current makeup of the court, if Texas wins, it most likely would be a muted victory on a 4-4 vote. That would allow the lower court ruling to stand but apply only to Texas and two other southern states in the 5th Circuit. It would leave unanswered questions about abortion regulations — which in some places, like Texas, led to clinic closures — in the rest of the nation.

Another possibility is that the current court essentially puts the case on ice until the fall or later, with the perhaps-unwarranted expectation that a new justice will be seated later this year or early next.

Reflecting the murky nature of the oral argument Wednesday, neither lawyer was ready to declare victory on the courthouse steps.

"I can't read the tea leaves," Toti said. "It appeared that the justices had an open mind. It was a hot bench, there were lots of questions, but I am optimistic that the court will ultimately reach the right decision in this case and recognize that this law is a sham."

“Justice Breyer said from the podium that he absolutely acknowledged that the Texas Legislature here, it's purpose was to improve patient safety,” Keller said. “That's what this law is about, those are the arguments we presented today, and now we'll wait for the court's opinion."

If Kennedy does not find a majority to remand the case, these are the possible outcomes:

A 4-4 ruling that goes into effect right away

The court could split 4-4 with the four liberal justices deciding for the clinics and swing Kennedy joining the three reliable conservatives in support of Texas. The justices could not issue an opinion but simply let the appellate decision stand in Texas, Louisiana and Mississippi, the three states in the 5th Circuit. No national precedent would be set.

Both Louisiana and Mississippi have abortion laws with restrictions similar to those in Texas, and it's likely that several abortion clinics in those states would be forced to close.

In this scenario the ruling wouldn't settle the legal fight over admitting privileges requirements in states like Wisconsin, Oklahoma and Alabama. Those laws are being challenged in courts, too, and the issue would likely return to the high court.

A deadlock and hold over

The justices have a second option in a 4-4 deadlock. They could issue no decision and hold the case over until the next term, or when there is a ninth justice. In essence, they'd postpone it.

The court's 2015 stay in the Texas case would likely remain in place — status quo. Under that stay, the ambulatory surgical center requirements couldn't take effect across Texas and the admitting privileges mandate couldn't take effect in certain parts of the state.

There is precedent for holding a case over — even significant abortion cases. In 1972, the court first heard Roe v. Wade with only seven members. The court held the case over into the next term and ruled when it had nine justices.

A clear win for abortion rights

If Kennedy joins the court's four liberal justices, the court could issue a 5-3 decision in favor of the clinics. Such a ruling would set a national precedent. But its scope — the breadth or narrowness of the ruling — would likely come down to Kennedy.

A very narrow ruling could strike the two provisions of the Texas law at play here — the admitting privileges and ambulatory surgical center mandates — and leave other parts of the law in place. That statute has other abortion restrictions such as a new waiting period and a ban on abortions after 20 weeks of pregnancy.