HB2 at SCOTUS: Updates

[Content Note: War on agency. NB: Not only women need access to abortion.]

As I mentioned yesterday, the Supreme Court heard oral arguments in Whole Women's Health vs. Hellerstedt, a case challenging parts of Texas' omnibus abortion bill, HB2.

For some additional background reading, see Jessica Mason Pieklo's "The 36-Year-Old Abortion Rights Case Emerging Again in Whole Woman's Health" and Tina Vasquez's "For Undocumented Women in Texas, HB2 Is Life or Death."

For coverage of yesterday's events at the Court, see:

Dahlia Lithwick: "The Women Take Over."

Irin Carmon: "No Clear Signal from Supreme Court on Abortion."

Lyle Denniston: "Argument Analysis: Two Options on Abortion Law?"

If you want to see what mainstream media sources are saying about the arguments, Molly Runkle's got a good round-up of coverage.

The transcript of the arguments is available in PDF format, and one thing that is abundantly clear: It matters a whole lot that there are liberal women on that Court.

Here, for example, are Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor calling bullshit on the fundamental inconsistency in Texas' argument, made by Solicitor General of Texas Scott Keller, that steep requirements for clinics are to "protect women's health" but that the closing of clinics as a result does not constitute an undue burden:
JUSTICE GINSBURG: Well, how many women are located over 100 miles from the nearest clinic?

MR. KELLER: Justice Ginsburg, JA 242 provides that 25 percent of Texas women of reproductive age are not within 100 miles of an ASC. But that would not include McAllen that got as-­applied relief, and it would not include El Paso, where the Santa Teresa, New Mexico facility is.

JUSTICE SOTOMAYOR: It includes— ­­

JUSTICE GINSBURG: That's—that's odd 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. But send them off to Mexico—New Mexico,­­ New Mexico where they don't get it either, no admitting privileges, no ASC. And that's perfectly all right. Well, if that's all right for the—the women in the El Paso area, why isn't it right for the rest of the women in Texas?

MR. KELLER: The policy set by Texas is that the standard of care for abortion clinics should rise to the level of ASCs for clinics, and admitting privileges for doctors. Texas obviously can't tell New Mexico how to regulate, but the substantial obstacle inquiry examines whether there is the ability to make the ultimate decision or elect the procedure. And when there's— ­­

JUSTICE GINSBURG: Then why should it count those clinics?

MR. KELLER: Well, here, the evidence in the record showed that this particular clinic was 1 mile across the border that was still in the El Paso metroplex, and women in El Paso often used that facility to obtain abortions. So that would go into the contextual analysis of this particular as­-applied challenge. This doesn't go to the facial challenge, but the as-­applied challenge and whether women in El Paso do have access to abortion. In any event, over 90 percent of Texas women of reproductive age live within 150 miles of an open clinic as of today.

JUSTICE KAGAN: Mr. Keller, the—the statistics that I gleaned from the record were that 900,000 women live further than 150 miles from a provider; 750,000, three-­quarters of a million, further than 200 miles. Now, that's as compared to just in 2012, where fewer than 100,000 lived over 150 miles, and only 10,000 lived more than 200 miles away. So we're going from, like, 10,000 to three-­quarters of a million living more than 200 miles away.

MR. KELLER: Well, Justice Kagan, first of all, I believe the statistics at JA 242, which is their expert testimony, would not account for McAllen or El Paso, but in looking at the fraction of women affected. And that would be the facial challenge standard, that at a minimum, a large fraction of cases, there would have to be invalidity even if there was an undue burden. The travel distance of—even in Casey, the district court found over 40 percent of Pennsylvania women were going to have to travel at least one hour, sometimes over three hours, and there was a 24­hour waiting period. Texas reduces that waiting period to two hours for traveling over 100 miles. And in Casey, that was not a facial substantial obstacle. Here, that relevant fraction is—is lower. And under Casey, then the facial challenge would not succeed. And Petitioners have a heavy burden, and they haven't shown any capacity evidence— ­­

JUSTICE SOTOMAYOR: When there's a need. Meaning, where are you taking an account in the undue ­burden analysis the value of the need being—of being imposed? Meaning, even if I grant you that in some circumstances travel time is necessary because you just can't get any kind of abortion clinic to go into a particular area, so you might have to impose a burden that might be undue in other circumstances. Where do we evaluate the benefit of this burden? What—what's the need? You—you seem—your brief seemed to be telling us that there's no role for the Court to judge whether there's really a health benefit to what you're doing.

MR. KELLER: Well, there would be three elements of the doctrine. There's the rational basis test— ­­

JUSTICE SOTOMAYOR: I'm not talking about the doctrine. I'm talking about the question I asked, which is, 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.

If Justice Kennedy is persuaded by that exchange alone, I don't even know.

Justice Ginsburg once said: "People ask me sometimes, when do you think it will it be enough? When will there be enough women on the court? And my answer is when there are nine."

I don't disagree. And in related news on that front, President Obama is reportedly vetting Eighth Circuit Court of Appeals Judge Jane L. Kelly as a potential nominee to replace Justice Scalia. According to Senate Minority Leader Harry Reid, announcement of the President's pick could come within the week.

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