Supreme Court Abortion Arguments Show Why Elections Matter
With thousands of abortion supporters (and exponentially fewer abortion opponents) rallying outside on a crisp early March morning, the Supreme Court heard oral arguments Wednesday in the biggest abortion case to reach the high court in decades. The justices appeared sharply divided on the case, but possibly not on the issues that most people expected. Though the outcome will likely remain uncertain until late June, Wednesday’s hearing made perfectly clear the stakes in the upcoming presidential election regarding the makeup of the Supreme Court.
Rolling Stone was at the Supreme Court for arguments Wednesday. Here’s what happened inside the courtroom, where, as we know, cameras are not allowed.
The case involves a challenge to HB 2, the Texas law that requires abortion doctors to obtain admitting privileges at a local hospital, and abortion clinics to meet the burdensome requirements of an ambulatory surgical center, basically making them mini-hospitals. Texas has attempted to justify the law as a way to protect women from the dangers of abortion. But abortion clinics in Texas, including lead plaintiff Whole Woman’s Health, argue that the law has no real medical justification and unduly burdens almost a million women in the state who will have to drive hundreds of miles to obtain an abortion now that the law has shut down over three-quarters of the state’s clinics. (Read more background on the case here.)
Several of the justices Wednesday, including “swing vote” Justice Anthony Kennedy, were concerned that the case amounts to a second bite at the apple for the clinics. (Planned Parenthood had previously brought a case fighting part of the law, though that case did not make it to the Supreme Court.) The clinics argued that they didn’t know just how burdensome the law would be until clinics actually closed.
Justice Kennedy, along with conservative Chief Justice John Roberts, pressed for specifics about whether the clinics that have closed in Texas did so because of HB 2 or because of other reasons. They wanted direct evidence that HB 2 was the reason for the closures, and even suggested at one point that the case should be sent back to the lower courts to develop that evidence.
After about 15 minutes of questions along these lines, Justice Ruth Bader Ginsburg finally turned the attention to the merits of the case. Roberts asked a few questions about whether the state had a rational basis for the law, and then the liberal justices took over the argument — and they may just have brought Kennedy along for the ride.
The stars of this part of the day were Justices Elena Kagan and Sonia Sotomayor. Together, they drilled home the absurdity of Texas’ argument about protecting women’s safety. The heart of their argument was that abortion, a common and very safe medical procedure, was being singled out for different treatment than much riskier out-patient procedures and in a way that made no medical sense. The Texas attorney at the Court Wednesday had no response other than to say that Texas is allowed to make that distinction.
Sotomayor pressed this position forcefully. At one point, Justice Stephen Breyer asked whether the state had passed the law in reaction to any found medical issues, and lawyers for the state responded by arguing that it intended to reduce the 210 complications per year related to abortion (from over 70,000 procedures). Sotomayor was not impressed, joking that while she isn’t very good at math, that seemed like a small percentage to her. She then peppered the state’s lawyers with questions about why Texas doesn’t go after other, riskier medical issues, such as colonoscopies, which are 28 times riskier than an abortion.