WASHINGTON — During oral arguments Wednesday in a case challenging the constitutionality of Texas’ abortion restrictions, U.S. Supreme Court justices found little on which to agree as they dissected the state law that could leave Texas with as few as 10 clinics.
Conservative justices questioned the role restrictions passed as House Bill 2 in 2013 played in closing dozens of clinics, asking if abortion providers could prove that two provisions in the law can be blamed for leaving the state with fewer clinics. They also demanded evidence bolstering claims that remaining clinics do not have the capacity to serve Texas women attempting to obtain the procedure.
Meanwhile, liberal justices pressed the state to prove that the medical justifications cited for passing the abortion restrictions were necessary. They questioned why Texas would push for abortions to be performed in ambulatory surgical centers but not other outpatient procedures, such as colonoscopies and liposuction, which come with higher risks for complications.
The contested provisions are part of HB 2. One requires abortion clinics to meet the same standards as hospital-like ambulatory surgical centers, which range from minimum sizes for rooms and doorways to the number of nurses required to be on duty.
A separate provision requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.
Only 19 Texas clinics remain of the more than 40 that were open before HB 2 passed, and the restrictions have been blamed for the closures. The court’s decision in Whole Woman’s Health v. Hellerstedt, expected sometime this summer, could leave the state with as few as 10 clinics.
Stephanie Toti of the Center for Reproductive Rights, which is representing the abortion providers, pointed out that 11 clinics closed the day the admitting privileges requirement went into effect, bringing the number of clinics down to about 20. Eight clinics closed in anticipation of the law going into effect, she said
But conservative justices appeared skeptical as to whether abortion providers had provided enough evidence to blame the restrictions for those closures. Justice Samuel Alito was the most critical, questioning whether the clinics had closed due to other factors.
“What’s the difference…was that their burden?” Alito said.
Justice Elena Kagan responded by pointing out that Texas was left with only a handful of clinics during a two-week period when the ambulatory surgical requirements went into effect last year.
Those clinics reopened when the Supreme Court intervened in the case. “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” Kagan said.
The case under review was filed in 2014 by a coalition of Texas abortion providers who argue the restrictions create substantial obstacles for Texas women seeking abortions — an “undue burden” that renders the rules unconstitutional — and do not advance the state’s interest in promoting health.
Attorneys for the state contend the regulations are intended to ensure women’s safety, and there isn’t sufficient evidence that they create an undue burden for the majority of Texas women seeking abortions.
Texas Solicitor General Scott Keller argued that only 25 percent of Texas women of reproductive age would live more than 100 miles from the closest abortion clinics under HB 2, not counting women in El Paso and McAllen.
Those women were not included in the state’s estimate because a McAllen clinic is currently exempt from the requirements, and women in El Paso can travel a few miles to New Mexico to obtain the procedure.
Justice Ruth Bader Ginsburg challenged that argument. In determining whether an abortion restriction is constitutional, “our focus must be on the ones who are burdened,” Ginsburg said.
She cited a spousal notification requirement struck down in Planned Parenthood v. Casey, the 1992 U.S. Supreme Court case that reaffirmed a woman’s right to an abortion but gave states more power to restrict the procedure to “further the health or safety of a woman.”
In that case, the court struck down a requirement that married women notify their husbands before obtaining an abortion.
“You only look to the women for whom this is a problem,” Ginsburg added.
Ginsburg also questioned why Texas would cite the availability of New Mexico clinics as part of its argument when that state does not require abortion clinics to meet similar ambulatory surgical and admitting privileges requirements.
“If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women Texas?” Ginsburg asked.
The lower courts have split on the constitutionality of the provisions. In 2014, U.S. District Judge Lee Yeakel of Austin struck down both provisions. The state immediately appealed to the U.S. 5th Circuit of Appeals, which in June upheld most of its provisions.
The appellate court did carve out an exception from most of the hospital-like standards for the relatively remote Whole Woman’s Health clinic in McAllen, and granted one of the McAllen clinic’s doctors relief from the admitting privileges requirement.
In that ruling, the 5th Circuit also diverged from opinion of other circuits by rejecting the notion that legal precedent requires courts to scrutinize the facts state legislatures use to justify health-related abortion restrictions.
On Wednesday, Alito, was among the most vocal in agreeing with that argument, questioning whether courts are “qualified” to determine the validity of states’ medical justifications.
The liberal justices struck a different tone, questioning how much the court should defer to state legislatures and how far states must go to provide evidence that restrictions improve health.
They also pressed Keller to lay out not only the medical benefits tied to the ambulatory surgical and admitting privileges requirements, but how they improved health standards.
Keller argued the restrictions are meant to make the procedure safer and respond to possible complications, which he says are underreported among abortion providers.
Justice Sonia Sotomayor responded that those complications would be reported by the hospitals that treat women. With thousands of women left more than 100 miles from the nearest abortion clinic, that may not always be the same hospital the doctor who provided the abortion is affiliated with, she added.
“There has to be some tie between the benefit and the burden, doesn’t there?” Sotomayor asked.
The Texas abortion case could have national implications. As of last November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities, but those restrictions were blocked in two of those states.
Justice Anthony Kennedy, considered the swing vote in the case, remained mostly silent during arguments despite his role in setting the undue burden standard in the 1992 case.
He offered little indication on his views of the law, but at one point questioned whether the case should be sent back to a lower court to collect more evidence on the law’s impact, including whether remaining clinics had the capacity to continue offering the procedure at the same rate if the state is left with fewer clinics.
Among his few interjections was pressing Keller on figures that showed that the share of medical abortions — a method used early in a pregnancy — is on the rise nationwide but down in Texas while the number of surgical abortions are increasing in the state.
“This may not be medically wise,” he said after his colleagues questioned why Texas would require women to obtain abortion-inducing medication in an ambulatory surgical center.
Following the recent death of Justice Antonin Scalia, the high court was left with a vacant seat. That means if Kennedy sides with the court’s conservatives, the resulting 4-4 tie would uphold the 5th Circuit’s ruling, which largely upheld the abortion restrictions, but the decision would not set national precedent.
The Texas case is the most prominent abortion case the court has considered in decades, and could redefine the next era of abortion restrictions in the United States.
In Austin, less than an hour after oral arguments ended, abortion rights activists from local law firms and the American Civil Liberties Union expressed optimism about the outcome of the case, and frustration the case needed to be heard in the first place.
“As I stand here today — I never thought we would be here,” said Barbara Hines, an attorney who has been an abortion rights activist since the early 1970’s, when abortion was a felony in Texas. “In 2016, we are still fighting over a woman’s right to control her own body and make her own decisions.”
Sarah Wheat, vice president for community affairs at Planned Parenthood of Greater Texas, spoke directly to the liberal justices’ questions about the medical necessity of HB 2’s costly clinic requirements.
“The width and breadth of our janitor’s closet is dictated — how often the air ventilates through our ventilation system, the width of our hallways. The type of door hinges we have. None of these enhance the safety and health of our patients,” Wheat said.
Jordan Rudner contributed to this report.
Disclosure: Planned Parenthood was a corporate sponsor of The Texas Tribune in 2011. A complete list of Tribune donors and sponsors can be viewed here.
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