In what was originally slated to be an hour of oral arguments, the U.S. Supreme Court went 19 minutes overtime Wednesday in the case of a Texas law that aims to restrict abortion. If the ruling in the case—Whole Woman’s Health v. Hellerstedt—knocks down the law, it would have nationwide implications and be a major victory for reproductive rights activists. If it splits 4-4, the law would be upheld, but no precedent would be set because of the tie and subsequent litigation—presumably with a ninth justice confirmed on the bench—could reverse such a decision.
But hints from the questioning of litigators by the key justice—Anthony Kennedy—indicate the Supreme Court might return the case to the lower courts to gather more evidence about whether the law has shuttered abortion clinics in Texas, thus making it more difficult for women seeking to terminate their pregnancies. In a scathing 2014 decision, a federal district court judge ruled the law was out of bounds, but a panel of the Fifth Circuit Court of Appeals overturned that ruling. The law’s foes then appealed to the Supremes.
A transcript of the oral arguments is available here.
Two provisions of the law are at issue. One requires that doctors performing abortions at clinics must obtain admitting privileges at a nearby hospital, often a difficult task. The other mandates that clinics meet the same building standards as hospital surgical facilities. Opponents of the law say these requirements that supposedly were passed to protect women’s health are medically unnecessary. They insist that the law’s true purpose is to close as many abortion clinics as possible.
There’s plenty of evidence for that view given the less-guarded remarks made by forced-birther lawmakers in Texas and other states that have passed similar laws.
The challengers in the case argued before the justices today that the Texas law undercuts the 1992 ruling in Planned Parenthood v. Casey that sought to “balance states’ legitimate interests in regulating abortion and women’s fundamental liberty to make personal decisions about their pregnancies.” In the language of Casey, laws that produce an “undue burden” on women’s access are unconstitutional. The Texas law fails the test because it makes access to abortion more difficult. Hundreds of laws have been passed in the past five years, and scores of them erect significant hurdles to women seeking to terminate their pregnancies.
Definitions matter. What exactly constitutes “undue burden?”