March 2, 2016 - Bill of Health

By I. Glenn Cohen

It is always dangerous to try to glean too much from oral argument, and I have only read the transcript (no recording yet) of today’s argument in Whole Women’s Health v. Hellerstedt, and finally I filed a brief in this case on the side of the law’s challengers so I may be suffering from some motivated reasoning. But with all those caveats, here goes:

Justice Scalia’s passing seems to have radically transformed this oral argument and likely this case. The 3 firm anti-abortion votes on the court (Alito and Roberts from their questions and earlier positions, Thomas we can infer from his earlier positions) left over after Justice Scalia’s passing seemed very much to be playing a defensive game. Many of their questions were aimed at convincing others on the Court (especially Justice Kennedy, the swing voter on these matters) to remand the case back to the lower court, much more so than focusing on giving Texas an outright win.

Appellant’s Counsel Toti’s argument barely was able to get to the merits questions in the case. Instead Justices Roberts, Alito, sometimes joined by Kennedy in these questions, repeatedly asked about evidence in the record on when various clinics closed, re-opened, and what evidence there was for the reason behind it. Toti tried to make use of the timing to her advantage as did the Justices more supportive of her side, but there was a lot of push on why this element of the record was not better developed. She was also repeatedly asked questions regarding the evidence on the capacity of remaining clinics to absorb extra patients needing abortions and what was developed in the record.

The same was true to a lesser extent in Appellee’s Counsel Keller’s argument. Justice Kennedy in particular focused on a line of questioning at page 44 of the argument that may also be significant in terms of remanding the case without resolving it:

“But I thought an underlying theme, or at least an underlying factual demonstration, is that this law has really increased the number of surgical procedures as opposed to medical procedures, and that this may not be medically wise?” Read More

Editor’s Note, June 2016: Thanks to John’s many contributions, he is now a Regular Contributor.

John Tingle is joining Bill of Health as a guest contributor. John’s main area of focus will be on what is happening in the UK in the areas of patient safety, clinical negligence litigation and complaints in health care. Policy documents issued in these areas by various governmental health bodies, NGOs and international health organisations such as WHO will be discussed. He will also be taking a comparative perspective and will be exploring the policies and publications of other countries on these issues. Issues such as human rights in healthcare, medical and nursing accountability, hospital transparency, governance and accountability are also key concepts for discussion.

John is Reader in Health Law at Nottingham Law School, Nottingham Trent University in the UK. He has a fortnightly magazine column in the British Journal of Nursing where he focusses on patient safety and the legal aspects of nursing and medicine. John teaches Tort and Medical Law on the LLB at Nottingham Trent and Patient Safety on the LLM in Health Law and Ethics. Read More