The Supreme Court’s potential swing vote on its pivotal abortion case gave few hints on Wednesday as to whether he would vote to strike down Texas’s law, which is considered among the strictest in the country.
Anthony Kennedy, a conservative justice who once ruled in favor of abortion access, revealed little throughout 90 minutes of arguments on whether Texas had created an “undue burden” on women with restrictions on abortion providers that opponents say have closed at least 11 clinics statewide.
Kennedy suggested the case could be sent back to the lower courts, extending the uncertainty around the 2013 law that has faced legal challenge since its passage.
Much of the debate Wednesday centered on the safety of the abortion procedure and whether the state’s restrictions on clinics were necessary. While liberal justices compared the procedure to a colonoscopy, Texas’s solicitor general said it was more like brain surgery.
Opponents of the law said they felt hopeful after Kennedy noted that the number of surgical abortions in Texas has increased relative to medical abortions — the opposite of the national trend.
It was an acknowledgement that the law seemed to be affecting the types of abortions women were having in Texas, even as his conservative counterparts, particularly Justice Samuel Alito, argued that the plaintiffs lacked evidence in their argument.
“This may not be medically wise,” Kennedy said of the increase in medical abortions, though he added that “you might say” it is a state’s decision to control those factors.
The case, Whole Woman’s Health v. Hellerstedt, could decide whether Texas can enforce one of the nation’s strictest abortion laws. Two dozen other states have similar restrictions in place, requiring abortion clinics to meet the standards of hospital-style surgical centers and requiring doctors who perform abortions to have admitting privileges at hospitals within 30 miles.
Because of Justice Antonin Scalia’s death last month, only eight justices heard the case. With all four liberal justices vocally opposing the Texas law, court-watchers say the case is likely to result in a 4-4 tie that would uphold the lower court’s ruling but not set a national precedent.
During the first 30 minutes of the arguments, the justices debated whether they should even be considering the case.
Alito aggressively questioned Stephanie Toti, the attorney representing Whole Woman’s Health, a nonprofit that operates several abortion clinics in Texas.
“What evidence is there that the closures are related?” Alito asked, his first in a series of questions to Toti that demanded more evidence the law was what was causing the clinics to close.
“Why is there not direct evidence?” he asked, interrupting Toti at one point.
Toti, arguing for the first time before the Supreme Court, sounded nervous, with “ums” and “uhs” punctuating many of her sentences.
All four liberal justices dug in against Texas Solicitor General Scott Keller as he argued that the Texas law was intended to improve the safety of abortion clinics.
Justice Stephen Breyer pointed out that Texas had reported few complications from abortions before the law was passed and asked whether there would be “more women or fewer women who die because of complications from abortions” after these restrictions.
He specifically pointed out the instances of self-induced abortions that Whole Woman’s Health described in its briefs.
“Texas did have existing regulations, but increasing the standard of care is valid,” Keller said, pushing back against the liberal justices’ challenges.
The case will likely be decided in June.
Outside the courtroom, hundreds of people on both sides of the issue rallied on the Supreme Court’s steps.
“People in Texas are suffering. We see it every day,” said Heather Busby, executive director or NARAL Pro-Choice Texas. “Their options have been erased, choice denied them, access impossible. We recognize these restrictions are harmful to our communities, to pregnant people and to our families.”
Kristan Hawkins, president of Students for Life of America, which organized the anti-abortion-rights rally with the Christian Defense Coalition, called the Texas laws common-sense legislation.
“If something goes wrong with an abortion, EMTs should have hallways big enough for their gurneys to go through,” she said. “I’m not going to lie; I’m not going to say I’m not against abortion, but this is a common-sense issue that people on both sides should be supporting.”
The arguments took place one day after Super Tuesday, underscoring the presidential election’s impact on the makeup of the court. GOP leaders in Congress have committed to blocking any nominee by President Obama to replace Scalia, calling instead for the next president to appoint a replacement.
Politics was rarely mentioned in the oral arguments on Wednesday, though Justice Elena Kagan alluded to Texas lawmakers’ opposition to abortion rights when it comes to their intentions with the law.
“Why would Texas do this?” Kagan said in a mocking tone, prompting laughter in the gallery. “I’m left wondering, given the baseline of regulations ... why is it that Texas would do this?”
Lydia Wheeler contributed.