Abortion case appears to split depleted Supreme Court
WASHINGTON — The Supreme Court appeared sharply divided Wednesday over Texas abortion clinic regulations in its biggest abortion case in nearly a quarter-century.
In 90 minutes of intense arguments, the court’s liberals and conservatives signaled that there’s little common ground as they try to figure out what to do about rules that Texas says are aimed at promoting women’s health.
The clinics say the real purpose of the regulations is to reduce access to abortion.
Justice Anthony Kennedy holds the key to whether the court splits 4-4, a result that would leave the regulations in place, but not resolve the issue nationally. He could side with his four more liberal colleagues to rule for the clinics and roll back the regulations.
Kennedy also suggested another outcome that would in essence put the issue on hold for a time to see whether the remaining clinics in Texas are able to accommodate the demand for abortion in the nation’s second most populous state.
The justice appeared concerned that one effect of the 2013 law is that it has lowered the number of abortions resulting from women taking pills and increased the number of more invasive surgical abortions, which he said “may not be medically wise.”
The hearing took place in the middle of a raucous presidential campaign and less than three weeks after the death of Justice Antonin Scalia, an outspoken opponent of abortion rights.
Other than Kennedy, justices on both sides of the ideological divide posed pointed questions that seemed to leave little doubt where they stood concerning the regulations. The rules require doctors who perform abortions to have admitting privileges at nearby hospitals and they force clinics to meet hospital-like standards for outpatient surgery.
The court put the surgery center requirement on hold while it considers the case.
Justice Ruth Bader Ginsburg and the other liberal justices repeatedly asked Texas Solicitor General Scott Keller to justify the need for more stringent regulations that the clinics say have led to the closure of roughly half of the 40 or so clinics in operation before the law took effect. Only about 10 clinics would remain if the law takes full effect, both sides agree.
Ginsburg questioned whether the state had evidence that existing state law “was not sufficiently protective of women’s health.” She said abortion is safer than many other medical procedures that are not as strictly regulated.
Keller replied that more than 210 women had to be hospitalized as a result of complications from abortion in a recent year. Pressed by Ginsburg, Keller acknowledged that was a complication rate of less than 1 percent of the state’s 70,000 abortions, but said the state still could act to make abortion safer.
Sitting next to Ginsburg, Justice Samuel Alito pressed the lawyer for the clinics, Stephanie Toti, to cite evidence showing that the regulations have had the drastic effect she claimed. Both Alito and Chief Justice John Roberts questioned whether some clinics closed for reasons independent of the regulations.
“What evidence is there that ties the closures to the requirements?” Roberts asked. Only Justice Clarence Thomas, who broke 10 years of silence at arguments on Monday, did not ask any questions.
On the sidewalk outside the court Wednesday morning, dozens of anti-abortion protesters chanted “pro-life, pro-woman” while hundreds of abortion rights advocates nearby shouted “abortion is a human right.”
If the court is evenly divided, the justices could decide to rehear the case once a new colleague joins them. President Barack Obama says he will nominate a successor to Scalia. But Senate Republicans, backed by the party’s presidential candidates, have pledged to keep Scalia’s seat empty so that the next president can fill it after taking office in January 2017.
Separately, the justices also are mulling an emergency appeal from clinics in Louisiana. The same federal appeals court has allowed that state’s admitting privileges law to take effect while a legal challenge winds its way through the courts, even after a trial judge struck it down as unconstitutional. The case is being appealed.
A decision in Whole Woman’s Health v. Hellerstedt, 15-274, is expected by late June.