10 Observations About the Supreme Court Argument in Whole Woman’s Health

Supreme Court
Flickr Creative Commons—Andrew Raff

By Gregory M. Lipper

On Wednesday, the Supreme Court heard oral argument in Whole Woman’s Health v. Hellerstedt, a constitutional challenge to a pair of Texas restrictions on abortion providers. The first provision requires doctors who perform abortions to have admitting privileges from a hospital no more than 30 miles from their clinic; for a variety of reasons, these privileges are very difficult for abortion providers to obtain. The second provision requires abortion clinics to meet the rigorous—and often prohibitively expensive—requirements governing ambulatory surgical centers (this was referred to as the ASC law). If allowed to take effect, these requirements would cause 3/4 of Texas abortion clinics to close and leave just 10 clinics to serve over 5 million women.

The requirements were struck down by the district court, reinstated by the Fifth Circuit, and temporarily blocked by the Supreme Court, which is now hearing the merits of the challenge.

Based on my review of the transcript, here are ten observations about the argument:

1. Justice Ginsburg opened the argument with a procedural curveball.

With the law’s challengers going first, most people presumably expected the argument to start with sharp questioning from, say, Justice Alito. Instead, the Center for Reproductive Rights’s Stephanie Toti got just two sentences out before she was interrupted by Justice Ginsburg. The former civil-procedure professor wanted to know about claim preclusion: in particular, whether the challenges, in this case, to the admitting-privileges requirement were foreclosed by the plaintiffs’ unsuccesful facial challenge, in an earlier case, to those same requirements. This and other procedural inquiries dominated Toti’s argument.

2. All roads lead to the record.

Several of the conservative Justices interrogated Toti about the proof that the law’s requirements would cause clinics to close. Toti provided some infromation about how laws would affect clinics, but also repeatedly alluded to more detailed information that she would supply during her rebuttal. This approach may have prolonged the questioning on this point:

The first deferred response came in response to questions from Chief Justice Roberts:

Respondents quibble with the evidence concerning the first eight. Even if we ­­– and ­ – and there is a basis in the record for the district court to infer that those eight closed for the same reasons as all the others, but even if we ­­–

CHIEF JUSTICE ROBERTS: Where – I’m sorry to interrupt you. Where in the record is that evidence?

MS. TOTI: Your Honor, I can provide specific pin sites during my rebuttal, but the evidence is in the plaintiffs’ testimony about the reasons why their clinics closed.

Then, in response to questions from Justice Breyer:

Each of the plaintiffs’ class testified that their clinics closed either in anticipation of enforcement of these requirements, knowing that ­­– that the clinic would not be able to continue operating once the requirements took effect, and as a result of that, either they needed to move resources to remaining clinics to ensure that some clinics would continue to operate in the State ­­–

JUSTICE BREYER: What’d they say? Could you give us any record references later or on rebuttal?

MS. TOTI: Yes.

And finally, in response to questions from Justice Ginsburg:

JUSTICE GINSBURG: You said you had direct evidence for 12 clinics and you were going to supply us with that – those record citations later. That’s – understood you to say?

MS TOTI: Yes. Yes, Your Honor. Absolutely. But I think what’s – what’s important to keep in mind here – …

As Glenn Cohen observed yesterday, “This was a perfect example as to why one needs to know the record cold, since so much of this case turned on the record.”

3. Justice Kagan made causation clear.

All that said, attempts to blame clinic closures on something other than the challenged law proved to be farfetched. Nothing made this clearer than a series of friendly questions posed to Toti by Justice Kagan. These questions illuminated a vivid pattern: Law takes effect, clinics close; law is put on hold, clinics reopen:

JUSTICE KAGAN: Ms. Toti, could I – could I just make sure I understand it, because you said 11 were closed on the day that the admitting-privileges requirement took effect; is that correct?

MS. TOTI: That’s correct.

JUSTICE KAGAN: And is it right 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; is that right?

MS. TOTI: That – that is correct, Your Honor. And – and –

JUSTICE KAGAN: It’s almost like the perfect controlled experiment 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.

MS. TOTI: That’s absolutely correct…

In an argument full of clever questioning, “perfect controlled experiment” was the argument’s most effective formulation.

4. Justice Kennedy seemed to want a way out.

Although seemingly convinced that the Texas law would indeed cause many clinics to close, Justice Kennedy wondered whether, with enough time, some of those clinics might be able to bounce back—and, hence, whether the Court could defer its ruling by remanding the case for additional factfinding by the district court:

JUSTICE KENNEDY: The – the State, I think, is going to talk about the capacity of the remaining clinics. Would it be A, proper, and B, helpful, for this Court to remand for further findings on clinic capacity?

JUSTICE: There – there have been some changes, like a – a major clinic – I don’t quite know the adjective they use for it – in San Antonio. But there – suppose there were evidence that there was a – a capacity and a – and a capability to – to build these kinds of clinics, would that be of importance? And then it would show that this law has an effect, and a beneficial effect so far as the legislature is concerned.

My armchair reaction to this question: Justice Kennedy knows that the law is unconstitutional, but he’s also deeply uncomfortable with abortion, and he’s looking for some way to avoid casting the deciding vote in favor of striking down the Texas law.

At the same time, Justice Kennedy seemed unlikely to uphold the law outright, and he appeared to recognize that, at a minimum, the Court should provide continued relief to prevent clinics from closing:

JUSTICE KENNEDY: Do you think the district court would have had discretion – the district court having substantial equitable powers that appellate courts don’t – to say we’re gong to stay this requirement for two-and-a-half, three years, to see if the capacity problem can be cured. Could a – could a district judge [do] that?

This was a bad sign for the state.

5. The more conservative Justices were playing defense.

With Justice Kennedy concerned about the effects of the Texas law, the other conservative Justices seemed to be trying to hit singles and doubles instread of home runs.

In one instance, the Chief Justice tried to get Toti to concede that the Texas law would survive rational-basis review—the most deferential possible standard, which is not the standard governing restrictions on abortion. In another instance, Justice Alito suggested that even if the guts of the law were unconstitutional, the Court could salvage other parts of it:

JUSTICE ALITO: Is this true of every provision of the – of the ASC law?

GENERAL VERRILLI: No, I – I don’t think it is true about every provision in the regulations, Justice Alito.

JUSTICE ALITO: Not the regulations – yes, in the regulations.


JUSTICE ALITO: Every single provision. Then why was the whole thing held to be unconstitutional?

JUSTICE ALITO: I don’t know why things couldn’t have been severed out, if there were some that were –

This, too, was a bad sign for the state: It’s unlikely that Justice Alito would have spent time on these questions if he thought that the law would survive in full.

6. The purported justification for the Texas law is a complete and utter sham.

One thing was unmistakable: The Texas law has nothing to do with protecting women’s health, and everything to do with making it as difficult as possible to get a legal abortion.

As several of the Justices pointed out throughout the morning, procedures such as colonoscopies and liposuction are much riskier and yet regulated much more lightly. And as Justice Breyer pointed out and as Texas Solicitor General Scott Keller barely disputed, there are no credible examples of actual harms, suffered by actual patients, that would have been prevented by the challenged law.

Two exchanges highlighted the pretext especially clearly.

First, as Justice Sotomayor pointed out in an exchange with Toti, the effect of the Texas law is that identical procedures are regulated more strictly when done for elective purposes than when done after a miscarriage:

JUSTICE SOTOMAYOR: The second is the D&C, the dilation and – what’s it called? Dilation and –

MS. TOTI: Curettage.

JUSTICE SOTOMAYOR: – curettage. What is the risk factor for a D&C related to abortion and a non-abortion D&C? D&Cs are performed in offices for lots of other conditions besides abortion.

Is there any evidence in the record that shows that there is any medical difference in the two – in the – in the procedures that would necessitate an abortion being in an ASC or not, or are abortions more risky than the regular D&C?

MS. TOTI: No, Your Honor. The evidence in the record shows that the procedures are virtually identical, particularly when D&C is performed to complete a spontaneous miscarriage. So when a woman miscarries and then follows up with her doctor, the doctor will typically perform a D&C. And that’s – that’s virtually identical to an abortion, but it’s not subject to the – the requirements of HB2.

The variable, then, is not the actual medical steps or risks; it’s the reason for the procedure.

Second, and even more telling, was that Keller tried to minimize the lack of abortion access by suggesting that women in El Paso had access to an abortion clinic in neighboring New Mexico—which does not impose the requirements at issue in this case. As Justice Ginsburg pointed out, this argument would make no sense if Texas was motivated by genuine concern for women’s health and safety:

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 is.

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 … New Mexico where they don’t get it either, no admitting privileges, no ASC. And that’s perfectly all right.

If the state is actually concerned with protecting Texas women, this argument makes no sense. The argument makes perfect sense, however, if the goal is to banish abortion from the state of Texas.

7. At best, the law was motivated by politics.

That Texas imposes fewer requirements on riskier procedures led Justice Kagan to ask what was really going on. Other Justices joined in. The eventual answer from Keller suggested that the state’s motive was, at best, pure politics, coming on the heels of the Kermit Gosnell trial in Philadelphia:

JUSTICE SOTOMAYOR: But there’s complications in colonoscopies, and colonoscopies are, what, 15 times –


JUSTICE SOTOMAYOR: 28. Justice Breyer just corrected me.


JUSTICE SOTOMAYOR: 28 percent higher. I mean –

MR. KELLER: But legislatures react to topics that are of public concern. In Gonzales, the Court noted after Dr. Haskell’s procedure for partial birth abortion became more of a nationwide concern, States reacted. When the legislature sees that there’s a problem, and maybe that there wouldn’t rise to the same level of a Gosnell problem, but the legislature can still act to make abortion safer, which is precisely what Texas did here.

Read most charitably, Keller was suggesting that the Texas legislature was confronted with a sea of underregulated medical procedurse, and chose to start with abortion—even though it’s much safer than other, more lightly regulated procedures—because of the public outcry generated by the Gosnell news. (He might have argued, in the alternative, that Texas singled out abortion “because it begins with the letter ‘A’.”) But a disproportionate response to a loosly related political outrage is a thin justification for eviscerating a constitutional right—especially since a law that closes reputable abortion clinics is likely to drive more women to Gosnell-like scofflaws.

8. The “undue burden” test takes into account the law’s benefits—or lack thereof.

Despite the lack of apparent medical justification for the law, the Fifth Circuit refused to consider the law’s benefits—or lack thereof—in deciding that the law did not impose an undue burden on the constitutional right to abortion. But undue burdens don’t exist in a vacuum: A burden may be due if there are corresponding benefits, but undue if it’s gratuitous. A needle in the arm is not unduly burdensome if it prevents the measles, but it is unduly burdensome if it’s done only to inflict pain.

Although Keller, Chief Justice Roberts, and Justice Alito tried to limit the burden analysis to the effect on abortion clinics, most Justices also considered whether those clinic closures were serving any legitimate goals or interests. Most notably, Justice Kennedy at one point asked Keller: “But doesn’t [your answer] show that the undue-burden test is weighed against what the State’s interest is?”

The consideration of the law’s justifications was especially important because, in this case, the law itself makes abortion more dangerous—by delaying abortions, which get riskier as time goes on, and by leading to self-induced or back-alley abortions.

Justice Breyer summed this up:

I mean, you read the briefs, and you’ve read the same articles I have. And of course the argument is if you lead to self-induced abortion, you will find many more women dying. So if the concern is this tiny risk of dying through a complication in a clinic, is this a remedy that will in fact achieve the legislature’s health-saving purpose?

In short, if the law increases the risks to women’s health, it’s impossible to ignore that the law’s purported health-based justifications are illusory.

9. If the Texas law were upheld, then the constitutional right to abortion would become a mere formality.

Although much of the argument focused on technical questions of procedure and medicine, U.S. Solicitor General Don Verrilli sought to put the Texas law in the broader context of the constitutional right to an abortion:

GENERAL VERRILLI: In – in the short time I have remaining, I’d like to finish with one point, if I could. I think, ultimately, the question before you is whether the right here is going to retain real substance, and whether the balance struck in Casey still holds.

If that right still does retain real substance, then this law cannot stand. The burdens it imposes, the obstacles, are far beyond anything that this Court has countenanced. And the justification for it is far weaker than anything that this Court has countenanced. It is an undue burden. It is the definition of an undue burden.

Given Justice Kennedy’s decision, in Planned Parenthood v. Casey, to reaffirm the constitutional right to abortion, this bird’s-eye conclusion was worthwhile.

10. Despite valiant efforts, the Chief Justice lost control of the clock.

Unlike his predecessor, Chief Justice Roberts usually gives lawyers leeway to briefly answer pending questions even after time has expired. But on Wednesday, the Chief Justice’s ability to control the clock was pushed to the brink.

Justice Ginsburg first requested that Toti receive extra time to address the merits, since her argument had been dominated by procedural questions:

JUSTICE GINSBURG: You – you had – we have absorbed so much of your time with the threshhold question. Perhaps you can – can she have some time to address the merits?

CHIEF JUSTICE ROBERTS: Why don’t – why don’t you take an extra five minutes, and we’ll be sure to afford you rebuttal time after that?

Justice Sotomayor extended that extension…

JUSTICE SOTOMAYOR: If the Chief may permit me to finish my two-part question?


… and then pressed on even after the Chief Justice tried to bring Toti’s time to an end:

JUSTICE SOTOMAYOR: So you’re point, I’m taking, is that the two main health reasons show that this law was targeted at abortion only?

MS. TOTI: That’s absolutely correct. Yes, Your Honor.

JUSTICE SOTOMAYOR: Is there any other –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

JUSTICE SOTOMAYOR: I’m sorry. Is there any other medical condition by taking the pills that are required to be done in hospital, not as a prelude to a procedure in hospital, but an independent, you know – I know there are cancer treatments by pills now. How many of those are required to be done in front of a doctor?

It took Chief Justice Roberts one more try to bring the first part of the argument to a close:

MS. TOTI: None, Your Honor. There – there are – are no other medication requirements and no other outpatient procedures that are required by law to be performed in an ASC.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Solicitor General Verrilli sought and received extra time at the end of his argument:

GENERAL VERRILLI: Well, I think it’s actually in the interest of government to look at it the way that we’re suggesting it ought to be looked at. And I – if I – you know, if [I] could take two minutes to explain why.


Right as Keller started his argument on behalf of Texas, the Chief Justice realized that he should give him some more time:

MR. KELLER: Thank you, Mr. Chief Justice –

CHIEF JUSTICE ROBERTS: I suppose I should – before you get started, we’ll afford you an additional eight minutes. I think that’s roughly –

MR. KELLER: An extra thank you, Mr. Chief Justice, and may it please the Court:…

And that extra time was briefly extended again:

JUSTICE GINSBURG: Well, that’s the problem. Once a clinic closes – you said McCallen reopened, but that was very swift. Once a clinic closes, equipment are gone, the doctors are gone, you can’t reinstate it tomorrow. It won’t be there. There will be no remedy for that woman who succeeds in the as-applied challenge.

MR. KELLER: Mr. Chief Justice, my time has expired, if [I] may address it.


Chief Justice Roberts once said, “I’ve had to act as … an umpire in terms of the competition among my colleagues to get questions out.” On Wednesday, he was thrust into the role of a wrestling referee.

*  *  *

Barring a 4–4 tie, we’ll see a decision by late June.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.