In oral arguments for Whole Woman's Health v. Hellerstedt, the court's liberal flank fired off one tough question after another.
Hannah LevintovaMar. 2, 2016 7:45 PM
Texas Attorney General Ken Paxton in front of the Supreme Court on March 2, 2016
After months of anticipation, with anti-abortion and pro-choice demonstrators gathered outside, the Supreme Court heard oral arguments today in Whole Woman's Health v. Hellerstedt, the case about a 2013 Texas abortion law, HB 2, that groups on both sides of the debate consider to be one of the most important in decades. "The Texas requirements undermine the careful balance…between states' legitimate interests in regulating abortion and women's fundamental liberty to make personal decisions about their pregnancies," Stephanie Toti, the attorney for Whole Woman's Health, told the justices Wednesday morning.
The death of conservative Justice Antonin Scalia last month means that the high court lost an outspoken opponent of abortion. Without Scalia on the bench, court watchers focused on Justice Anthony Kennedy—the most unpredictable vote in this case, and thus likely the most important. Kennedy has historically wavered on abortion—in the 1992 case Planned Parenthood v. Casey, Kennedy famously changed his mind at the last minute, leading to the court's 5-4 decision to reaffirm Roe v. Wade. If he sides with the conservative justices in this case, the court will deadlock in a 4-4 decision, which would mean the 2015 ruling of the 5th Circuit Court of Appeals to uphold HB 2 in full will stand, and closures of Texas abortion clinics will follow.
At the center of the case are two provisions of HB 2. One requires all clinics where abortions are performed to meet the standards of ambulatory surgical centers, hospital-like facilities usually used to perform outpatient surgeries. The other provision requires all doctors performing abortions to have admitting privileges to local hospitals.
The Texas health department argues that these provisions are necessary to protect women's health—a standard that was established in 1992 in Casey as a legitimate reason for states to pass abortion restrictions. Casey also established, however, that the state's interest in women's health has to be weighed against whether an abortion law would place an "undue burden" on women seeking abortion care. This is where the plaintiff's argument lies. Whole Woman's Health, which runs three abortion clinics in Texas, argues that the burdens on women created by HB 2—clinic closures across the state that have forced thousands of women to travel hundreds of miles for abortion care—far outweigh any interest in protection of women's health that Texas has.They point to many medical groups, including the American Medical Association, that have said ambulatory surgical facilities and admitting-privileges requirements are not necessary to provide safe abortion care.
For a number of the justices, this medical disagreement was their central focus. Justice Sonia Sotomayor asked an early question about medical abortions—in which a woman terminates a pregnancy without surgery, usually at home, by taking a combination of pills prescribed by a physician. Under HB 2, Texas women must still go to an ambulatory surgical center to have this medical abortion. Sotomayor asked if any other pill-only medical treatments—those used to treat some types of cancer, for example—are subject to a similar requirements to be performed at an ambulatory surgical center.
"None, your honor," responded Toti.
Justices Samuel Alito and Chief Justice John Roberts asked Toti to outline the evidence suggesting that these closures are a direct result of HB 2. She pointed out that 20 clinics closed in the wake of HB 2, including 11 on the day the admitting-privileges requirement went into effect. Both justices didn't seem satisfied that this demonstrated a causality between the law and clinic closures, and they asked for additional evidence. Justice Kagan reminded the court that in the two weeks when HB 2's ambulatory surgical center requirement was active in 2014—after the 5th Circuit court allowed it to go forward and before the Supreme Court intervened with an emergency hold—more than a dozen clinics closed. As soon as the Supreme Court pulled the law back, the clinics reopened.
"It's almost like the perfect controlled experiment as to the effect of the law, isn't it?" asked Kagan. "It's like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen."
When Texas Solicitor General Scott Keller stepped up to present his arguments on behalf of the state's health department, Justices Ruth BaderGinsburg, Stephen Breyer, Kagan, and Sotomayorpiled on. Ginsburg asked Keller how many Texas women live more than 100 miles from their nearest clinic. Keller said 25 percent, not including the women in El Paso who can access an abortion clinic that is in New Mexico, just one mile past the Texas border.
"That's odd that you point to the New Mexico facility," said Ginsburg. How could Texas argue that the HB 2 provisions are essential to women's health, while also arguing that Texas women aren't burdened by HB 2 because they can access abortions in New Mexico, where clinics aren't subject to HB 2-like provisions? "Send them off to New Mexico, where they don't get either, no admitting privileges, no ASC," said Ginsburg, referring to ambulatory surgical centers. "And that's perfectly all right. Well, if that's all right for the women in the El Paso area, why isn't it right for the rest of the women in Texas?" Keller's answer circumvented Ginsburg's point: He said that this is a standard of care that Texas believes abortion clinics should achieve, and that the New Mexico clinic is just one mile across the border from Texas.
Justice Kennedy asked Keller about another potential wrinkle in the state's women's health argument: He noted that while medication abortions are rising in the rest of the country, data suggests they are going down in Texas and being replaced by a rising rate of surgical abortions, a switch that Kennedy said "may not be medically wise." And Justice Breyer asked Keller to provide examples, from before the enactment of HB 2's admitting-privileges requirement, of women who had abortion complications and were unable to get care at a hospital. Keller conceded that such examples weren't in the record provided to the court.
Breyer followed up: "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?"
In answering this barrage of questions from the court's liberal flank, Keller often returned to variations on the same point: abortions can lead to complications. Justice Ginsburg took him to task over this in one memorable moment. Childbirth, she said, is a much riskier procedure than abortion. Keller responded by saying that one of the amicus briefs filed in the case disputes that fact. Ginsburg shot back, with a hint of exasperation, "Is there really any dispute that childbirth is a much riskier procedure than an early-stage abortion?"
Why is Texas creating more stringent restrictions for abortion than for other medical procedures that are far more risky? Justices Breyer, Ginsburg, Kagan, and Sotomayor each posedversions of this question to Keller.Breyer wondered why abortions were treated more strictly than colonoscopies, while Kagan made the same argument regarding liposuction. Keller argued that Supreme Court precedent allows Texas to treat abortion with different medical standards than other procedures. In response, Kagan hinted at a question that pro-choice advocates have raised since HB 2 first became law: Might Texas have passed this law to make abortions harder to obtain, rather than out of an authentic health interest? "You say you're allowed to make this choice, and we can argue about that," Kagan said. "I just want to know why Texas would make it."
With votes still being counted, Hillary Clinton is projected to win Democratic primaries in six states and is leading in several more. Clinton addressed her cheering supporters from the Ice Palace Film Studios in Miami, thanking her volunteers, organizers, and small-dollar donors while touching on issues such as equal pay for women, student loans, inclusiveness and religious diversity, and reinvigorating the middle class. She leveled her attacks less on her Democratic opponent, Bernie Sanders, than on the GOP front-runner, Donald Trump. She riffed off several of Trump's favorite phrases: "We know we've got work to do. But that work is not to make America great again," she said, to raucous applause. "America never stopped being great. We need to make America whole again." Watch her victory speech here:
Last night, on the eve of Super Tuesday, Rep. Scott DesJarlais (R-Tenn.) was the firstrepresentative from Tennessee and the fourth member of Congress to endorse Donald Trump.
But DesJarlais' personal life has not been a model of Republican decorum. Despite his public opposition to abortion—his website notes, "Congressman DesJarlais believes that all life should be cherished and protected"—his personal life is another story.Before he became a politician, his wife and mistress both had abortions, with his approval or even encouragement.
In 2000, 10 years before he became a member of Congress, DesJarlias was a physician. He had an affair with a patient, and when she became pregnant he urged her to have an abortion. In a phone call obtained by the Huffington Post in 2012, DesJarlais pleaded with her to go ahead with an abortion before it was too late to do the procedure. Why? Because, he said, he was trying to save his marriage.
During divorce proceedings a few months later, DesJarlais also revealed that he and his wife had made a "mutual decision" for her to have two abortions. He called the decisions "a difficult and poor choice."
Yet DesJarlais is committed to denying other women this choice. He received a 100 percent score from the National Right to Life Committee's rankings of politician's voting records on abortion. Last year, he voted for the federal 20-week abortion ban that the GOP-controlled Congress considered to be one of its top priorities.
DesJarlais's conflicted history on abortion is not so different from Trump's flip-flopping on this topic. In a 1999 interview on Meet the Press, Trump said that he was "very pro-choice." Since entering the presidential race, however, he's changed his tune. In an August 2015 debate, Trump said, "I hate the concept of abortion. And then, since then, I've very much evolved…I am very, very proud to say that I am pro-life."
On Wednesday, the Supreme Court will hear arguments in what both sides of the abortion debate consider the most important abortion case in a generation. At issue in Whole Woman's Health v. Hellerstedt is HB 2, an omnibus Texas abortion law passed in 2013 that has contributed to the closure of more than half of the abortion clinics in the state.The recent death of Justice Antonin Scalia has added a new layer of complexity to the possible outcomes, but the court's decision in this case could transform the landscape of abortion access far beyond Texas.
The Texas law under consideration first made national headlines in 2013 when state Sen. Wendy Davis filibustered the bill in the state's Legislature, standing on her feet for 11 hours in pink sneakers that have since become a symbol of the fight for abortion rights. She spoke of "the dark place it will take us," referring to the potential harm to Texas women of the bill's proposed abortion restrictions. The bill passed anyway.
In Whole Woman's Health, the Supreme Court will consider twoprovisions of HB 2: the requirement that abortions be performed only in ambulatory surgical centers, hospital-like facilities usually used to perform outpatient surgery, and the mandate that doctors performing abortions have admitting privileges at a nearby hospital. Medical groups, including the American College of Obstetricians and Gynecologists, have repeatedlynoted that these restrictions are not necessary to provide safe abortion care, while anti-abortion groups contend that the restrictions are crucial to protect women's health.
The court will have to decide whether these restrictions constitute an "undue burden" on a woman's right to get an abortion. This standard was established in the court's 1992 decision in Planned Parenthood v. Casey, which upheld a woman's right to terminate a pregnancy but allowed states to regulate this right, provided that state laws don't place an "undue burden" on women. If the justices uphold the Texas law, they could expand the "undue burden" standard, greenlighting the evolution of more Texas-like abortion restrictions across the country and cementing the ones that already exist: 22 states require abortion clinics to meet the standards of ambulatory surgical centers.
The "undue burden" standard is already ambiguous, but it has provided some protection for clinics fighting to stay open. The plaintiff in this case, Whole Woman's Health—which runs three abortion clinics in Texas—has used the standard in lower courts to put dents in HB 2. In 2014, lawyers from the Center for Reproductive Rights successfully argued in a Texas state court that the ambulatory surgical center provision places an undue burden on women seeking to exercise their right to an abortion. The restriction would lead to so many clinic closures, CRR's lawyers argued, that thousands of women would be forced to make costly and time-consuming trips of hundreds of miles within Texas to get an abortion; other women would have to cross state lines to obtain an abortion in New Mexico.
The state court ruled in Whole Woman's Health's favor, striking down the ambulatory surgical center requirement because it "burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade."
Less than a year later, the 5th Circuit overruled this decision, allowing the ASC provision to move forward. The Supreme Court intervened and put an emergency hold on the rule as the high court decided whether it would review the law. If the Supreme Court upholds the 5th Circuit decision, at most 10 clinics will remain open in Texas—which translates to roughly one clinic per every half million women of reproductive age in Texas. A 2015 study conducted by the Texas Policy Evaluation Project estimated that 100,000 to 240,000 Texas women have tried to self-induce abortions, and that it's possible the rate of attempted self-induction is rising as a result of added abortion restrictions and clinic closures in the state.
Other states have replicated the Texas model: passing their own laws with abortion restrictions similar to those in HB 2 and resulting in the closure of clinics. Today, six states—North Dakota, South Dakota, Mississippi, Missouri, Louisiana, and Wyoming—each have only one remaining abortion clinic, and several of these last clinics are at risk of closing if the court sets a national precedent upholding the surgical facilities and admitting privileges requirements.
"The Court now has the opportunity to decide whether we will continue to allow elected officials to play politics with women's health," wrote Ilyse Hogue, the president of NARAL Pro-Choice America, in a November 2015 statement. "This case represents the greatest threat to women's reproductive freedom since the Supreme Court decided Roe vs. Wade over 40 years ago. Laws like the ones being challenged in Texas are designed to subvert the Constitution and end the right to a safe and legal abortion."
With the death of Justice Antonin Scalia, a 4-4 split decision is likely, meaning the 5th Circuit's decision to fully uphold HB 2 stays put. This would reinforce existing abortion regulations in Texas, Mississippi, and Louisiana—states that are within the 5th Circuit and already have restrictive laws. But it would also mean that the high court can't issue a broader decision that would enable more abortion restrictions nationwide. As my colleague Nina Liss-Schultz explained, "Upholding the lower court's decision would mean there would be no federal precedent determining whether admitting privileges and strict architectural standards are fair game for states interested in restricting abortion."
In all likelihood, Justice Anthony Kennedy will determine whether this case will end in a 4-4 deadlock or in a 5-3 decision. Kennedy has historically wavered on abortion—in Casey, Kennedy famously changed his mind at the last minute, leading to the court's 5-4 decision to reaffirm Roe v. Wade. "Now, however, with Scalia's seat vacant and the Court evenly divided between Democratic and Republican appointees," writes Think Progress fellow Ian Millhiser, "the likelihood HB2 will be upheld outright is vanishingly small."
During Thursday's CNN-Telemundo GOP debate, front-runner Donald Trump strayed from his colleagues on the campaign trail by saying some nice things about Planned Parenthood.
"Millions and millions of women—cervical cancer, breast cancer—are helped by Planned Parenthood," he said. "So you can say whatever you want, but they have millions of women going through Planned Parenthood that are helped greatly."
He's made similar points before. "They do some very good work," Trump said of Planned Parenthood on Sunday's Meet the Press. "Cervical cancer, lots of women's issue, women's health issues are taken care of.”
But throughout the campaign, Trump has said—and he reiterated this point at Thursday's debate—that as long as Planned Parenthood continues to provide abortions, he would defund the women's health provider as a show of his pro-life bonafides.
"I would defund it because of the abortion factor, which they say is 3 percent. I don't know what percentage it is," he said at Thursday's debate in Texas. "But I would defund it, because I'm pro-life."
But here's the thing about Trump's pro-life pledge: The federal Hyde Amendment already prohibits the use of federal funding for abortions, except for those performed in cases of rape, incest, and where the life of the mother is at risk. This amendment has been attached to federal appropriations bills regularly since the 1970s. Planned Parenthood receives virtually no federal funds to provide abortions. It's that simple.