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No clear sign from Supreme Court how it will rule on Texas abortion law

Supporters of legal access to abortion, as well as anti-abortion activists, rally outside the Supreme Court on Wednesday as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion.
Supporters of legal access to abortion, as well as anti-abortion activists, rally outside the Supreme Court on Wednesday as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. Tribune

Supreme Court justices sparred furiously Wednesday over a controversial Texas abortion clinic law, clarifying their stark differences but leaving the final outcome in question.

Confronting the court’s first abortion case since 2007, liberal and conservative justices largely articulated their expected positions while pivotal Justice Anthony Kennedy remained a bit more opaque.

The end result, on an eight-member court left shorthanded by the death last month of conservative Justice Antonin Scalia, could prove anti-climactic if justices kick the case back for more fact-finding. At the least, though, the unusually long 80-minute oral argument illuminated the court’s sharp divide and the topic’s enduring power.

Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer, all Democratic appointees, repeatedly pressed Texas Solicitor General Scott A. Keller about what medical benefits the Texas law provides and what burden it imposes on women’s constitutionally protected abortion rights.

“According to you,” Sotomayor asked Keller, “the slightest health benefit is enough to burden the lives of a million women. That’s your point?”

From the right, Chief Justice John Roberts Jr. and, in particular, Justice Samuel Alito pressed questions and made statements sympathetic to the 2013 Texas law known as House Bill 2.

“I read through those regulations,” Alito said of the measure. “I was surprised at how many are completely innocuous.”

At another point, Roberts seemingly tipped his hand when he asked Stephanie Toti, the attorney for Whole Woman’s Health and other challengers of the law, “How is that logical?”

A third Republican appointee, Justice Clarence Thomas, reverted to his customary practice of asking no questions, but he is an inveterate supporter of laws restricting abortion.

This court arithmetic likely leaves the resolution of the case up to Kennedy, the 79-year-old justice who often acts as a swing vote.

Raising the possibility of passing the buck, for now, Kennedy asked Keller whether it would “be appropriate to remand” the case so a lower court could pin down firm answers to some factual questions, including how the Texas law has affected the state’s abortion “capacity.”

“We had the liberal-conservative breakdown in the court that you would expect among the justices,” Roger Severino of the conservative Heritage Foundation said after the argument, “but Justice Kennedy, in the few questions he asked, showed some hesitation about courts second guessing the state’s ability to regulate abortion clinics.”

The case, styled Whole Woman’s Health v. Hellerstedt, is a challenge to several provisions of House Bill 2. Whole Woman’s Health operates abortion-providing clinics in Fort Worth, San Antonio and McAllen, a border city about 150 miles south of Corpus Christi. Their opponent in the case, Dr. John Hellerstedt, is commissioner of the Texas Department of State Health Services.

One challenged provision requires abortion clinics to meet the same standards as ambulatory surgical centers. Standards range from a minimum square-footage requirement to rules covering plumbing, heating, lighting and ventilation. Another challenged provision requires doctors performing abortions to have admitting privileges at hospitals within 30 miles.

“Texas acted to improve abortion safety,” Keller said, adding that “abortion is legal and accessible in Texas.”

The liberal justices, though, repeatedly voiced skepticism about the Texas Legislature’s true motivation in passing House Bill 2, with several noting that procedures such as colonoscopies and liposuction carry greater risk than abortion yet don’t require these tighter regulations.

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