Top 10 Supreme Court Justice Takedowns of Texas Abortion Law
The U.S. Supreme Court heard oral arguments Wednesday in the most important abortion case in a generation. And the oral arguments in the landmark case Whole Woman’s Health v. Hellerstedt did not disappoint. The women justices on the Court — Justice Sonya Sotomayor, Justice Elena Kagan, and Justice Ruth Bader Ginsburg — helmed an expert takedown of the medically unnecessary law — House Bill 2 — that has already closed more than half of the state’s abortion clinics and would leave more than 5 million women of reproductive age with fewer than 10 clinics.
So without further ado, here’s our top ten list — it was hard to narrow down — of their most epic exchanges:
Justice Sotomayor drives home just how medically unnecessary these laws really are.
JUSTICE SOTOMAYOR: How many other States and how many other recognized medical people have testified or shown that there is any benefit from taking pills at the facility as opposed to taking the pills at home, as was the case?
MS. TOTI: There -- there is -- there's absolutely no testimony in the record and no evidence, you know, in any of the amicus briefs that there is a medical benefit to having a medication abortion at a multimilliondollar surgical facility. The American Medical Association and every other mainstream leading medical association to consider these requirements has concluded that they are not medically justified for a variety of reasons … And there is evidence in the record that following implementation of the admittingprivileges requirement, in the six-month period following, there was an increase in both the number and the proportion of abortions being performed in the second trimester. So by delaying women's access to abortion, these requirements are actually increasing the risks that women face.
The lawyer for the state of Texas, Texas Solicitor General Scott Keller, tries to underplay the number of women impacted by the law, and Justice Kagan isn’t having it.
MR. KELLER: … 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 statistics that I gleaned from the record were that 900,000 women live further than 150 miles from a provider; 750,000, threequarters 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.
In which Chief Justice John Roberts attempts to interupt Justice Sotomayor.
JUSTICE SOTOMAYOR: So your 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?
MS. TOTI: None, Your Honor. There are no other medication requirements and no other outpatient procedures that are required by law to be performed in an ASC.
Justice Breyer leads Solicitor General Keller to admit that there is zero evidence showing why there is a need for these laws — laws that masquerade as solutions to problems that don’t exist.
JUSTICE BREYER: Okay. So I want to know, go back in time to the period before the new law was passed, where in the record will I find evidence of women who had complications, who could not get to a hospital, even though there was a working arrangement for admission, but now they could get to a hospital because the doctor himself has to have admitting privileges? Which were the women? On what page does it tell me their names, what the complications were, and why that happened?
MR. KELLER: Justice Breyer, that is not in the record.
JUSTICE BREYER: Judge Posner then seems to be correct where he says he could find in the entire nation, in his opinion, only one arguable example of such a thing, and he's not certain that even that one is correct.
So what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation, though perhaps there is one, but not in Texas.
Justice Sotomayor schools Texas’ lawyer on what an undue burden actually means, like in reality.
JUSTICE SOTOMAYOR: … 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. That's your point?
Justice Ginsburg calls out the state’s bunk evidence.
JUSTICE GINSBURG: As compared to childbirth, many, many -- much riskier procedure, is it not?
MR. KELLER: Well, the American Center for Law and Justice and Former Abortion Providers' amicus brief dispute that. But regardless, there is evidence --
JUSTICE GINSBURG: Is there really any dispute that childbirth —
JUSTICE GINSBURG: is a much riskier procedure than an early stage abortion?
Justice Kagan breakdowns the absurdity of just how far Texas lawmakers could go to target abortion providers using the logic presented by the state.
JUSTICE KAGAN: Well, can the legislature say anything, General? I mean, if the legislature says we have a -- a health-related abortion regulation here, we've looked around the country and we think that there are ten great hospitals in the country, you know, Massachusetts General, Brigham and Women's, and we're going to make all our abortion facilities conform to the standards of those hospitals, and that will -- you know, that will increase medical care. Now, it's true we don't make anybody else doing any kind -- other kind of procedure conform to those standards, but we think it will increase health benefits if abortion facilities conform to them. Would that be all right?
MR. KELLER: Under this Court's precedent, abortion can be treated differently. That's Simopoulos. That's Mazurek. And let's --
JUSTICE KAGAN: I'm sure that there's medical evidence that if every hospital, if every facility was as good as Massachusetts General, they would be better facilities. I'm sure that you could find doctors to say that, because MGH, it's a great hospital. But that would be okay, even though it's not applied to any other kind of facility doing any other kind of procedure, even though we know that liposuction is 30 times more dangerous, yet doesn't have the same kinds of requirements.
In a final mic drop moment, Justice Ginsburg closes with asserting this premise: access to abortion as is a fundamental right.
JUSTICE GINSBURG: But this is about — what it's about is that a woman has a fundamental right to make this choice for herself. That's what we sought as the starting premise. And then this is certainly about -- Casey -- Casey made that plain, that it -- the focus is on the woman, and it has to be on the segment of women who are affected.
Justices Breyer, Kagan, Ginsburg, and Sotomayor team up to debunk the state’s nonsensical Gosnell justifcation for passing this totally unnecessary law.
JUSTICE GINSBURG: Random -- Texas, under the prior law, has the right to make random inspections. Was -- the problem in Pennsylvania was this filthy clinic hadn't been looked at by anyone from the State in 16 years. But Texas can go into any one of these clinics and immediate -- immediately spots a violation? It says you can't operate till you come up to speed. So Texas has had, as Justice Kagan pointed out, its own mechanism for preventing that kind of thing from happening.
MR. KELLER: Texas did have existing regulations, but increasing the standard of care is valid, particularly not only in light of --
JUSTICE SOTOMAYOR: It's valid only if it's taking care of a real problem.
JUSTICE SOTOMAYOR: Well, but -- yeah, but -- but you have to see, as Justice Breyer asked you earlier, why are the problems? Isn't this a selfc-reated problem? What happened in Texas independent of Gosnell that raised the Gosnell-like situation in Texas that made --
JUSTICE ALITO: Gosnell.
JUSTICE SOTOMAYOR: -- the legislature so after so many years about taking care of this greater risk in abortions, as opposed to all the other procedures that are performed in non-ASC facilities?
Justice Ginsburg destroys any doubt anyone has ever had that these sham laws were passed to protect women’s health and safety.
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.
Well, if that's all right for the women in the El Paso area, why isn't it right for the rest of the women in Texas?