In Major Abortion Case, Justice Kennedy Offers Few Clues On How He Is Leaning

Oral arguments in a major abortion case at the Supreme Court Wednesday gave few clues as to how the key swing vote, Justice Anthony Kennedy, felt about the case. The absence of Justice Antonin Scalia, who died last month, was felt as only two justices in the court’s conservative bloc offered a vocal defense of the law, while the court’s liberals were able to pursue the sharpest lines of questioning.

The case, Whole Woman’s Health v. Hellerstedt, is a challenge to a Texas abortion law passed in 2013. The omnibus legislation imposed dozens of mandates on abortion providers, forcing more than half of the state’s clinics to close. Defenders of the law — which was pushed by the anti-abortion group Americans United for Life — say its purpose is protecting women’s health. Abortion rights activists argue that the costly restrictions are not medically necessary and are merely targeted at limiting access to the procedure.

All eyes Wednesday were on Kennedy, who voted to uphold abortion rights in Casey v Planned Parenthood but has since has greenlighted almost every other abortion restriction that has made it to the Supreme Court. The Texas law at issue Wednesday was upheld by the U.S. 5th Circuit of Court of Appeals after a district court ruled against it. Similar provisions in other states have been struck down by courts elsewhere in the country.

At first, Kennedy seemed dubious of the arguments made by those challenging the restrictions, injecting early into the oral arguments skeptical questions about the procedural details of how the case was brought. He also pressed the abortion clinics’ lawyer, Center for Reproductive Rights attorney Stephanie Toti, about tfhe evidence the challengers offered in the lawsuit and suggested a possibility that the case could be remanded back to a lower court.

U.S. Solicitor General Donald Verrilli also argued in support of the clinics, while Texas’ case was argued by Scott Keller, the state’s solicitor general.

At one point during Verrilli’s arguments, when the law’s effect on the remaining clinics’ capacity was being discussed, Kennedy asked whether the district court could have temporarily halted the law for two or three years to better understand the capacity problem.

“District judges often think they can do anything,” Kennedy mused, getting laughs.

When it was Keller’s turn at the podium, Kennedy was most engaged in a discussion about the law’s effect on access to medication abortion. (It requires that those seeking the procedure, a series of two pills, take both doses in clinics that meet the standards of an ambulatory surgical center). The challengers argue the law makes medication abortion more difficult to access and thus pushes women to undergo the surgical procedure, which is riskier.

Kennedy wondered whether the state had a legitimate interest in in a law that increased number of surgical abortions.

“I thought an underlying theme … is that this law has really increased the number of surgical procedures as opposed to medical procedures, and that this may not be medically wise,” he said.

An aspect about the case that he and other justices were also hung up on was whether the laws’ two main aspects — the requirement that abortion providers have admitting privileges at local hospitals and that clinics meet the standards of an ambulatory surgical center (known as the ASC requirement) — could be severed and challenged separately.

Scalia’s death means that if Kennedy votes with the three other conservative justices, the 4-4 decision would result in the law being upheld in Texas, but would set no precedent nationally. A Kennedy vote with liberals could result in a broader decision in favor of abortion rights which would affect similar restrictions being passed in other states.

With Kennedy not saying much, it was up to liberal and conservative justices to duel over which direction the oral arguments should be led. In doing so, the justices posed their questions to the lawyers arguing the case but really pitched them to Kennedy and to what they perceived he would find most persuasive.

In the challengers’ portion of the hearing, the conservative justices zeroed in on the evidence the abortion providers offered that the law had closed dozens of clinics in the state, and specifically whether the clinics had proved that the law alone could be blamed for the closures.

“We’re not talking about a huge number of facilities,” Alito said to Toti, when asking why there was not more evidence directly linking the closures to the law. Later, he also prodded Verrilli whether all the restrictions in the massive law would be considered by the challengers to be burdensome, because some seemed to him a matter of “basic” safety.

Justice Clarence Thomas did not ask any questions, and without Scalia’s usual bluster, Chief John Roberts and Justice Samuel Alito maintained a measured tone.

The liberals, meanwhile, jumped in to support the clinics’ arguments. Noting that many of clinics that closed the day the ASC requirements went to effect were able to reopen immediately after it was temporarily halted, Justice Elena Kagen said, “It is almost like a perfect controlled experiment.”

Towards the end of Toti’s arguments, Justice Sonia Sotomayor led the questioning to a discussion of how the law was pushing women into procedures later in the pregnancy and how the law didn’t target target non-abortion procedures that were very similar to abortion.

With Toti hitting her time limit, twice Roberts interrupted the discussion to cut her off with a, “Thank you, counsel.”

When Keller came up to defend Texas’ law, the liberals kicked their questioning into high gear. Justice Stephen Breyer grilled him on where there was an example in the record of an abortion patient with a complication who was not able to receive proper treatment before the law that the legislation would now address.

“That is not in the record,” Keller was forced to admit.

Justice Kagan wondered whether Texas, under Keller’s understanding of the law, would be allowed to required to that abortion providers meet the standards of the 10 best hospitals of the country. Her questioning grew even more heated when she demanded that Keller tell her “why” the Texas legislature sought to impose stricter regulations on abortion when other types of procedures are far riskier.

As Keller struggled to answer her question, Alito jumped into to take the discussion in a different direction.

With Texas claiming that the law put a burden on only a small portion of its residents, Justice Ruth Bader Ginsburg raised the point that it is lower-income women and particularly those in rural areas who are now forced to drive hundred miles to the nearest clinic.

“This is not a problem for women who have means to travel… those women will have access to abortion,” she argued. “The focus is on the woman, and it has to be on the segment of women who are affected.”

A decision in the case is expected later this spring.