"For the first time in history, the U.S. Supreme Court heard a major abortion rights case with three women on the bench."
Photo by Allison Shelley/Getty Images
The case is a challenge to the Texas law requiring abortion clinics to be outfitted like hospital surgical facilities and for the doctors to have admitting privileges at a hospital within 30 miles. These regulations would force the closing of all but 10 clinics in the entire state of Texas, restricting access for millions of women.
Farias wrote: "Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all played an outsized role in the hearing . . . . But it was Ginsburg, the court's matriarch, who seemed the most invested in the nearly 85-minute session on Wednesday. She asked the first and last questions of both sides . . . but saved her most pointed darts by far for the Lone Star state's Solicitor Scott Keller.
"'As I understand it, . . . . [an early-stage abortion] is among the most safe, the least-risk procedures. . . . So what was . . . the problem that the legislature was responding to that it needed to improve the facilities for women's health?'"
Keller had no better answer than that the lawmakers "acted to improve abortion safety," which he defended as a legitimate interest allowed under the Constitution.
"Ginsburg and her female colleagues were far from convinced. When Keller pointed to the biggest, most populous cities in the great state of Texas -- where clinics are complying with the law -- as proof that the procedure would remain available elsewhere if the court upheld the law, Ginsburg took him to task for what is likely the state's weakest argument.
"Well, how many women are located over 100 miles from the nearest clinic?" she asked.
"That's when the slow and painful unraveling of Keller began. He conceded that '25 percent' of women -- by which he meant roughly 1.5 million -- do. To him that was no harm . . . . He reasoned that some women could always go to nearby New Mexico, which doesn't have the same restrictions on abortion clinics as Texas.
"'That's odd that you point to the New Mexico facility,' Ginsburg shot back. '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.' Instead, she said, the state proposed to 'send them off' to New Mexico, whose clinics are not subject to any of Texas' health-conscious regulations.'
"Ginsburg has a big stake in this fight. . . . Her younger companions on the bench echoed some of these sentiments. . . . 'What's the need' for the law, Sotomayor wondered, that 'the slightest health improvement is enough to impose on hundreds of thousands of women' . . . the burden of traveling hundreds of miles to reach an abortion provider. Kagan piled on with facts and figures on how Texas women today are farther from a clinic than they were prior to H.B.2's passage."
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A day later, in a related article, also by Christian Farias, news was reported that the Supreme Court had blocked a similar Lousiana law from going into effect while the appeal is pursued through the court. The law would result in the closing of all but one of Lousiana's abortion facilities.A decision on the Texas case is not expected before June; but, in blocking a similar Louisiana case from going into effect, the Court may be signalling the fate of the Texas case. After all, according to usual procedure, they would have just taken their preliminary vote on the Texas case, in the process of deciding who writes the majority opinion. If, immediately following that, they voted to halt the almost identical Louisiana law from going into effect pending appeal, there's good reason to think it reflects their thinking on Texas.
With Justice Scalia's death, a 4 to 4 tie vote would leave in place both the Texas and the Louisiana laws, since that was the decision of the lower court from which they were appealed. In both cases, SCOTUS overturning these laws would require a 5 to 3 decision -- with Kennedy, most likely, joining these three women and Justice Breyer. Blocking the Louisiana law from going into effect pending appeal just might be the signal that is what will happen.
Ralph
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