WASHINGTON — The absence of late Supreme Court Justice Antonin Scalia at Wednesday’s oral arguments in a Texas abortion case made it resoundingly clear that the court will not set a national rule upholding strict abortion provider restrictions this term.
Further still, the liberal justices were aware of that reality and brought an aggressive, self-assured tone to the questioning — particularly of Texas' lawyer — in a sign of the new, if delicate, balance on the nation's high court.
While the justice in the middle — Justice Anthony Kennedy — didn't tip his hand clearly as to where he ultimately would come down in the case, the tenor of his questions made it unlikely that he would join his three more conservative colleagues in a decision wholly upholding the challenged Texas abortion provider restrictions.
At issue was a law Texas passed in 2013 that, among other provisions, requires abortion facilities there to meet the same standards as ambulatory surgical centers (ASCs), where outpatient surgery is performed. Under the new law, doctors who perform abortions also must have admissions privileges at a nearby hospital. Abortion providers and advocates have said the law would result (and has resulted) in many Texas clinics closing because they do not meet standards.
While Justice Anthony Kennedy's ruling in the case will control the fate of the Texas law, the four liberal justices made it abundantly clear that they believed the two provisions at issue in the case were clearly unconstitutional under a key prior Supreme Court decision on abortion rights written by Kennedy.
As a result, even if Kennedy disagreed with them, there nonetheless could be no majority opinion upholding the law because in that situation, the court would be split 4-4. In such a situation, the lower court ruling would stand. Here, that would mean Texas’ law would be upheld, as well as enabling similar laws in the 5th Circuit (Louisiana and Mississippi). While that’s not a result abortion rights supporters want, it would avoid a national ruling allowing such laws.
On Wednesday, however, Kennedy asked about whether the case might appropriately be sent back down to the trial court for further factual development, the justice also asked a handful of skeptical questions to the lawyer representing Texas.
More than what Kennedy said today, though, it was what he wrote in 1992 (along with Justices Sandra Day O'Connor and David Souter) that controlled the discussion. Everyone — from the lawyers to his colleagues to Kennedy himself — was focused on how the Texas provisions should be treated under Planned Parenthood of Southeastern Pennsylvania v. Casey, the last big abortion case at the Supreme Court, when the court said it reaffirmed the central holding of Roe v. Wade protecting a woman's right to an abortion against "undue burdens" by government.
The Texas case was seen as the most high-profile abortion rights case to reach the court in more than 20 years, but Scalia's death in February changed the dynamics of the case significantly.
This past June, the 5th Circuit Court of Appeals upheld the restrictions, but later that month, on a 5-4 vote, the Supreme Court granted a stay of the lower court ruling, putting the restrictions on hold while the Supreme Court considers the case.
Because the court had granted the stay — suggesting that five justices, including Justice Anthony Kennedy, viewed the restrictions as constitutionally suspicious — the case already was an uphill battle for the law's supporters. With Scalia's death, however, the supporters' battle became an even more uphill one because the best case scenario for abortion opponents was a 4-4 split of the court.
Following the arguments in Whole Woman's Health v. Hellerstedt on Wednesday, however, even that seemed an unlikely outcome — with Kennedy more likely to join the more liberal justices in striking down the provisions, write his own opinion staking out a middle ground, or seek a way to send the case back to lower courts for further factual developments than to join the conservatives in wholly upholding the provisions.
The liberals came to the arguments ready to present a full-throated case for why, under Casey, the Texas provisions had to be seen as unconstitutional.
At one point during Texas Solicitor General Scott Keller's argument time, Justice Stephen Breyer asked about the need for the admitting privilege provision.
"[G]o 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?" Breyer asked. "Which were the women? On what page does it tell me their names, what the complications were, and why that happened?"
"Justice Breyer, that is not in the record," he replied.
"What evidence is there that under the prior law, the prior law was not sufficiently protective of the women's health?" Justice Ruth Bader Ginsburg asked of the ASC requirements. "What was the problem that the legislature was responding to that it needed to improve the facilities for women's health?"
Keller noted a prior admission from Planned Parenthood in a prior case that "over 210 women annually are hospitalized because of abortion complications," prompting Ginsburg to note that childbirth — without the ASC requirement — is "much riskier." When Keller responded that there was a brief from the conservative American Center for Law and Justice disputing that, Ginsburg essentially dismissed Keller, saying, "Is there really any dispute that childbirth is a much riskier procedure than an early stage abortion?"
A decision in the case is expected by late June.