Kennedy Leans Toward Pro-Abortion Rights Advocates

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By Kimberly Robinson

March 2 — Two Texas abortion regulations may be in peril—or at least headed for further litigation—following oral argument March 2 at the U.S. Supreme Court.

One of the regulations requires abortion doctors to obtain “admitting privileges” at a nearby hospital. The other says that abortion clinics must meet the same standards as “ambulatory surgical centers.”

It's the first time the high court has considered the controversial topic since 2007, when it upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart, 550 U.S. 124 (2007).

Texas says its laws are merely health and safety regulations, meant to make abortion safer for women. But the challengers say the laws are solely intended to close down abortion clinics and dramatically limit access to abortion in the state.

During the intense argument all eyes were on Justice Anthony M. Kennedy, who appeared sympathetic to the abortion providers here.

The effect of the Texas regulations seems to make riskier surgical abortions more prevalent than medical abortions, which occur earlier in the pregnancy, Kennedy noted. Can the state, in the name of health and safety, do something that “may not be medically wise?” Kennedy wondered.

However, Kennedy also seemed keen to delay a decision on the merits, asking if the court should remand to the U.S. Court of Appeals for the Fifth Circuit for additional consideration.

‘Flimsy' Support

U.S. Solicitor General Donald Verrilli Jr. of Washington went even further than Kennedy in his assessment of the health benefits here. Arguing for the U.S. as amicus in support of the abortion providers, Verrilli said those benefits were “frankly flimsy.”

If the right to obtain an abortion retains any substance, the laws here must be struck down, he said.

That sentiment was echoed by the more liberal justices on the court, with Justice Stephen G. Breyer taking Texas Solicitor General Scott Keller of Austin, Texas, to task over whether there was any credible health reason for the regulations.

Breyer noted that prior to the new admitting-privileges regulation, abortion clinics were required to have agreements with hospitals that allowed them to transfer patients experiencing complications.

Where in the record is evidence of the woman who had complications that couldn't get into the hospital under the old law, but can get into the hospital under the new ones, Breyer asked Keller.

When Keller responded that there wasn't any such evidence in the record, Breyer pointed to a Seventh Circuit opinion reviewing similar Wisconsin laws, which said there was possibly one case in the country where that had happened, Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908 (7th Cir. 2015).

So Texas is trying to cure a problem of which there is not one single instance of it happening—at least not in Texas, Breyer said.

With regard to the ambulatory surgical centers requirement, Breyer asked why those standards were necessary for abortion, when they weren't necessary for riskier outpatient procedures.

Colonoscopies are 28 times more likely to result in complications, yet Texas doesn't require clinics providing those procedures to comply with the standards for ambulatory surgical centers, he said.

Keller said it has never been the test that the state has to treat all medical procedures the same. Texas can treat abortion differently, he said.

Reasons Don't Matter

But Chief Justice John G. Roberts Jr. said the state's reasons for adopting the laws didn't matter.

The Supreme Court's “undue-burden” analysis looks at whether the burden is undue in relation to the fundamental right to get an abortion, not in relation to the state's interest in passing the law, he said.

So what difference does it make why Texas adopted the regulations, Roberts rhetorically asked Stephanie Toti, of the Center for Reproductive Rights, New York, who argued on behalf of the abortion providers.

Justice Samuel A. Alito Jr. agreed, saying that Texas could increase standards for abortion clinics as high as it wanted as long as it didn't unduly burden access to abortion.

“But doesn't that show that the undue-burden test is weighed against what the state interest is?” Kennedy jumped in.

Verrilli said that considering the state's interest was the best way for the court to proceed.

Take the flip side of this argument, he said. If the evidence showed that the laws saved hundreds of lives, a substantial burden on abortion might be more tolerable, Verrilli said.

More Evidence Needed?

However, Kennedy was at times critical of the abortion providers too.

He wondered why they hadn't brought certain claims in an earlier litigation, and suggested that the failure to do so might doom their chances here.

Kennedy also flirted with the idea of sending the case back to the lower court for more evidence on the actual effect of the law.

In particular, Kennedy thought the record was thin on whether the remaining abortion clinics could handle the spillover if and when other clinics close as a result of the regulations. Those regulations have been stayed by the Supreme Court pending the outcome in this case.

But Verrilli said remand wasn't necessary.

There are about 65,000 to 70,000 abortions performed each year in Texas, Verrilli said. The evidence in the record now shows that the remaining clinics could only accommodate about 14,000 abortions after the regulations go into full effect.

Evenly Split?

The uncertainty over Kennedy makes this case one of a handful of high-profile cases that could split 4–4 following Justice Antonin Scalia's death.

Along with Breyer, the three woman on the court vigorously criticized the Texas regulations. While Justice Clarence Thomas didn't ask any questions during the argument, Roberts and Alito seemed poised to uphold the laws.

If the court is evenly split, the lower court's decision largely upholding Texas's regulations will stand. Because lower courts are split on whether similar laws in other states are constitutional, an even split will leave in place a patchwork of abortion regulations across the country.

The court could, however, agree to reargue the case once it is back to full strength.

A decision one way or the other is expected by June.

To contact the reporter on this story: Kimberly Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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