From Slate: The Women Take Over

Dahlia Lithwick, slate.com – Mar 2, 2016

The oral arguments for the Texas abortion case, the three female justices upend the Supreme Court’s balance of power.

When the Supreme Court last heard oral arguments in a landmark abortion case, it was April 1992, the case was Planned Parenthood v Casey, and Sandra Day O’Connor was the lone female justice.

Twenty-four years later, there are three women on the court. And if you count Justice Stephen Breyer as one of history’s great feminists—and I do—then you can view the arguments in this term’s landmark abortion case, Whole Woman’s Health v Hellerstedt, as creating a neat 4–4 split. On one side, you have a group of testy male justices needling a female lawyer for Texas clinics about whether it was even appropriate for them to hear this appeal. On the other, you’ve got four absolutely smoking hot feminists pounding on Texas’ solicitor general for passing abortion regulations that have no plausible health purpose and also seem pretty stupid.

It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules. Time limits were flouted to such a degree that Chief Justice John Roberts pretty much gave up enforcing them. I counted two instances in which Roberts tried to get advocates to wrap up as Justices Ruth Bader Ginsburg and Sonia Sotomayor simply blew past him with more questions. There was something wonderful and symbolic about Roberts losing almost complete control over the court’s indignant women, who are just not inclined to play nice anymore.

The case involves a crucial constitutional challenge to two provisions in Texas’ HB 2, the state’s omnibus abortion bill from 2013. The first requires doctors to obtain admitting privileges from a hospital 30 miles from the clinic where they perform abortions; the second requires abortion clinics to be elaborately retrofitted to comply with building regulations that would make them “ambulatory surgical centers.” If these provisions go into full effect, Texas would see a 75 percent reduction in the number of clinics serving 5.4 million women of childbearing age. The constitutional question is whether having 10 clinics to serve all these women, including many who would live 200 miles away from the nearest facility, represents an “undue burden” on the right to abortion deemed impermissible after the Casey decision. Each of the female justices takes a whacking stick to the very notion that abortion—one of the safest procedures on record—requires rural women to haul ass across land masses larger than the whole state of California in order to take a pill, in the presence of a doctor, in a surgical theater.

The morning starts with an arcane and technical debate that eats up most of Stephanie Toti’s time. Toti, arguing on behalf on the Texas clinics, first has to answer an argument—raised by Ginsburg—that the clinics were precluded from even bringing some of their claims. Between this and factual challenges from Roberts and Justice Samuel Alito as to whether there was any evidence on the record to show that the law itself triggered the closings of Texas clinics, she doesn’t have much time to get to the merits. So frustrated is Justice Elena Kagan by the conservatives’ repeated insistence that perhaps the clinics just coincidentally all closed within days of HB 2’s passage that she finally has to intervene. “Is it right,” she asks Toti, “that in the two­-week period that the ASC requirement was in effect, that over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately?” Toti agrees. “It’s almost like the perfect controlled experiment,” continues Kagan, “as to the effect of the law, isn’t it? It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen?”

Here is where Justice Anthony Kennedy, who clearly holds the whole of Texas in his hands, first suggests that it might be “proper” and “helpful” for the court to remand this back to the lower courts for hearings, to address questions about the capacity of the remaining clinics to fill the state’s needs.

If the case does get bounced back, the Supreme Court can hear it again another day. This is not great news for the women of Texas, but at least it wouldn’t drive a stake through the heart of Roe.

Roberts spends a good deal of Toti’s remaining time suggesting that the “undue burden” test after Casey has nothing to do with the state’s purpose in passing the law. Toti replies that the court looked carefully at the state’s intent when it assessed the abortion regulations in Casey. At around this point, Sotomayor decides that she has some things to say: “There’s two types of early abortion­­ at play here. The medical abortion, that doesn’t involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?” Toti explains that the woman has to take them at the abortion facility under Texas law.

Sotomayor is back: “I’m sorry. What? She has to come back two separate days to take them? … When she could take it at home, it’s­­ now she has to travel 200 miles or pay for a hotel to get those two days of treatment?”

Toti confirms that there is no reputable evidence that there is a medical benefit to having a medication abortion at “a ­multi-million­-dollar surgical facility.”

Sotomayor asks for more time to finish her two-part question and the chief justice nods, resigned. Then Sotomayor asks why a dilation and curettage associated with a miscarriage can be performed in a doctor’s office whereas a basically identical D&C must be performed in an ambulatory surgical center when it’s for an abortion. Toti replies, and Sotomayor keeps talking. The chief thanks Toti but Sotomayor forges on, wondering if any other medical procedures require taking pills in a hospital. No, says Toti. Sotomayor is finally content to rest her case.

Solicitor General Don Verrilli will probably not get adequate credit for giving a nearly flawless 10-minute argument Wednesday morning on behalf of the Obama administration. He opens with the most succinct recitation of the issue so far: “This law closes most abortion facilities in the state, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state. And it does all of that on the basis of a medical justification that cannot withstand any meaningful scrutiny that the American Medical Association has told you is groundless and that the district court found will actually operate in practice to increase health risks to women.”

Justice Samuel Alito is having none of it. “Many of [the regulations] have … to do with basic safety. They don’t even have anything to do, in particular, with abortion. So the entrances to the clinic have to be at grade level. You have to have an elevator. The ­­corridors have to be wide enough so that you could bring in a stretcher.” Later Alito will suggest that “Whole Woman’s facilities have been cited for really appalling violations when they were inspected. Holes in the floor where ­­rats could come in.” (This gives whole new meaning to the phrase TRAP laws.)

Verrilli closes by cautioning the justices about eviscerating the very right preserved in Casey: “If you do find that this law is upheld, what you will be saying is that this right really only exists in theory and not in fact.

The remainder of the argument basically just consists of the four liberal justices pounding away on Texas Solicitor General Scott Keller.

Read the full article here.