Wednesday, March 2, 2016
The Court heard oral arguments today in Whole Woman's Health v. Hellerstdet (previously Cole), the case being touted as the most important abortion rights case in many years. Recall that the Court granted certiorari to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). A divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.
The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. Importantly, this is the decision that would stand should the Court split 4-4. The most likely scenario of such a split would be Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy on one side and Justices Ginsburg, Breyer, Kagan, and Sotomayor on the other. The most likely scenario of a reversal of the Fifth Circuit and a finding that HB2's provisions are unconstitutional is generally considered to be Justice Kennedy joining the Justice Ginsburg group. Not surprisingly then, Justice Kennedy will be the focus of most any analysis of today's argument.
And indeed, Justice Kennedy took an active role in today's argument in which each of the advocates was accorded extra time in part because of the procedural issues involved regarding the challenge to HB2 as applied and what contentions may have been precluded by the previous facial challenge. While this issue did occupy the beginning of Stephanie Toti's argument on behalf of Whole Woman's Health, and questions regarding remand were raised - - - including by Justice Kennedy - - - it is unclear whether there is sufficient enthusiasm for deciding the case on procedural issues.
Instead, as Solicitor General Donald Verrilli, arguing in support of Whole Woman's Health, phrased it, the question before the Court is whether the right to abortion "is going to retain real substance" and "whether the balance struck in Casey still holds." Justice Kennedy was in the majority in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey authored by Justice O'Connor and which upheld the essential core of Roe v. Wade. Scott Keller, the Attorney General of Texas, not only accepted Casey in his argument but argued that it was the petitioners - - - Whole Women's Health - - - that were "trying to upset the balance that was struck in Casey."
The "balance" of Casey could be said to reside in the "undue burden" standard that the Court articulated, but today's argument displayed some of the ambiguities with that standard. On one view, which seemed to be the one Chief Justice Roberts was articulating, the statute has to pass "rational basis" and then it is measured again as to whether there is an undue burden. On the other view, the "undue burden" is measured with regard not only to the exercise of the right to an abortion but measured against the level of the state interests. Justice Breyer articulated this understanding, but importantly, in a colloquy with the Texas Attorney General after a question by Justice Alito, Justice Kennedy also seemed to adhere to this view:
JUSTICE ALITO: Would it not be the case that - - - would it not be the case - - - that a State could increase the the standard of care as high as it wants so long as there's not an an undue burden on the women seeking abortion? So, you know, if they could if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be a burden on the women, well, that would be a benefit to them. Would there be anything unconstitutional about that?
MR. KELLER: No. Provided that women do are able to make the ultimate decision to elect the procedure.
JUSTICE KENNEDY: But doesn't that show that the undue burden test is weighed against what the State's interest is?
MR. KELLER: Justice Kennedy - - -
JUSTICE KENNEDY: I mean, are they are these two completely discrete analytical categories, undue burden, and we don't look at the State’s interest?
On the question of the state's interest, Texas Attorney General Keller had a difficult time responding to the questions from Justices Ginsburg, Breyer, Sotomayor, and Kagan. Comparisons to dental procedures and colonoscopies prevailed, and on the issue of nonsurgical abortions requiring the taking of two pills which Texas law required be done at an ambulatory surgical facility, some Justices pressed especially hard. The "abortion is different" argument of Texas Attorney General Keller seemed especially unconvincing here.
The actual effect of the HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements on the closing of clinics was raised at numerous times, with Justice Kennedy interestingly interjecting the precise percentage - - - 20% - - - of the capacity of licensed facilities after the passage of HB2. Justice Ginsburg found it "odd" that Attorney General Keller pointed to the ability of women to go across state lines to New Mexico - - - which does not have similar restrictions - - - to support his contention that women were not substantially burdened.
The oral argument did little to upset the pre-argument predictions. Justice Alito was most hostile to the petitioners, and although Justice Thomas asked no questions today unlike Monday, his views on abortion do not seem in flux. Justices Ginsburg, Breyer, Kagan, and Sotomayor did not seem to find the arguments on behalf of Texas credible. While the Chief Justice has known to be surprising and could possibly craft a narrow opinion, Justice Kennedy is occupying the center. It does seem, however, as if that center tilts slightly back toward Casey and away from HB2.