The Women Take Over
In oral arguments for the Texas abortion case, the three female justices upend the Supreme Court's balance of power.
Supreme Court Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg.Allison Shelley/Getty Images
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.
DAHLIA LITHWICKDahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.
Twenty-four years later, there are three women on the court. And if you countJustice 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 inCasey: "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.
Ginsburg begins by asking Keller how many Texas women live more than 100 miles from an abortion clinic. When he tells her that women in El Paso can hop over the border to New Mexico, she stops him short. "That's odd," she muses, "that you point to the New Mexico facility. New Mexico doesn't have any surgical ASC requirement, and it doesn't have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things." (This is where I want to call up each of the men who demanded that Ginsburg retire in 2014 and just smile, and smile, and smile.)
Sotomyor tags in: "According to you, the slightest health improvement is enough to impose on hundreds of thousands of women. Even assuming I accept your argument, which I don't, necessarily, because it's being challenged, but the slightest benefit is enough to burden the lives of a million women. That's your point?"
Ginsburg: "I can't imagine. What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?"
Then Kennedy asks Keller a surprising question: Is the effect of this law "to increase surgical abortions as distinct from medical abortions," he wonders, because "this may not be medically wise."
Now it's over to Breyer: "There are two laws. I am focusing on the first law. The first law says that a doctor at the abortion clinic must have admitting privileges in a hospital … nearby, right?" Yes, says Keller. "Where in the record will I find evidence of women who had complications, who could not get to a hospital, even though there was a working transfer arrangement … because the doctor himself has to have admitting privileges? Which were the women? On what page does it tell me their names, what the complications were, and why that happened?"
Keller replies that this isn't in the record. Breyer continues, "So Judge Posner then seems to be correct where he says he could find in the entire nation, in his opinion, only one arguable example of such a thing, and he's not certain that even that one is correct." Breyer leans in, "What is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation, though perhaps there is one, but not in Texas." People laugh.
Kagan wonders whether the Texas legislature can demand that every abortion clinic must conform to the standards of Massachusetts General, since that would undoubtedly increase health benefits. "because MGH, it's a great hospital."
This affords Kennedy the opportunity to add, importantly, "Doesn't that show that the undue burden test is weighed against what the state's interest is?"
Then it's Kagan who moves in. Calmly, poker-faced, she asks Keller: "You said that as the law is now … Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards … for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work? Am I right?"
Keller agrees. Then Kagan asks: "And I guess I just want to know, why would Texas do that?" The room erupts. Keller says complications. Kagan says that liposuction actually has greater complications. Keller says Kermit Gosnell. Kagan says nothing that happened in the Gosnell case could have occurred under Texas' pre-existing regulations. Sotomayor says colonoscopies have more complications. Finally, Keller says, "But legislatures react to topics that are of public concern." And that is what matters. Not women's health. Politics.
At this point in the transcript—Page 70—we find Justice Kennedy saying, "Sonia is off." I didn't hear that in the court—everyone was talking over everything. On Friday, when the audio is released, we can figure out what that means. Meanwhile, let's just have fun with it.
Keller is now way over his time, but Ginsburg can't stop herself from asking: "Earlier in your argument, you were quoting how many women are within a reasonable range of the clinic. But don't we know from Casey that the focus must be on the ones who are burdened?"
Keller tries to reply that laws regulating women—such as Casey's spousal notification provision, which was deemed unconstitutional—are different from the Texas law, which only concerns "doctor and clinic regulations." Ginsburg the feminist legend is now incredulous: "But this is about … a woman has a fundamental right to make this choice for herself. "
John Roberts practically has to manhandle Keller into sitting down. Ginsburg, it appears, was only getting started.
Looming over most of the morning, of course, is Justice Scalia, who is three times larger in his absence than even his outsize presence used to be. Scalia, recall, once referred to clinics in an opinion announcement as "abortion mills." Justice Alito seems exhausted trying to play both his own part, and Scalia's, and Justice Clarence Thomas, silent today, chatters and laughs with Breyer. One senses that the chief justice, two weeks into this new post-Scalia era, is worn out just trying to keep the women at bay. And with today's facts in hand, the pugilistic culture warrior Scalia would have been incomparable. Without him on the bench, the court's conservative wing is reduced to demanding more and more proof that the closure of 11 clinics on the day HB 2 passed was really a result of the law. This is, as Scalia would never say, weak applesauce.
If the case is sent back to Texas on remand, we will play this out again in a few years with nine justices. But it's hard to imagine President Obama conjuring up, from even the darkest, most devious underground lab, a new justice who would be half as fierce as the four-car train of whoop ass we saw today
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