The Notorious RBG, the mysterious Anthony Kennedy and the future of abortion rights: Whole Woman’s Health v. Hellerstedt roundup

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Yesterday, the Supreme Court heard a case that could determine abortion access in the US for decades. We won’t get a ruling on Whole Woman’s Health v. Hellerstedt until June, but here’s a roundup of where things stand after yesterday. 

This case was brought by a clinic in Texas against the draconian law that shut down the majority of abortion clinics in the state (the law that Wendy Davis famously filibustered in her pink sneakers). Nora Caplan-Bricker at Slate laid out what’s at stake:

If Kennedy sides with the court’s four liberal justices in declaring HB2 a bridge too far, the resulting 5-3 decision will set a precedent that could make abortion easier to access for women not just in Texas but across the country. If Kennedy sides with his three remaining conservative colleagues, however, the 4-4 tie won’t have precedential power. An even split would reaffirm the lower court’s decision, which upheld the Texas law, and, more broadly speaking, would leave the right to choose in the hands of the appellate courts.

Thousands of pro-choice activists rallied outside the court to hear speeches by heads of pro-choice organizations, women who have had abortions, abortion providers and more. It was an inspiring display of support for women’s rights. Of course, the anti-choice side was out there too, spouting their usual drivel, as Christina Cauterucci wrote:

At the margins of the anti-choice contingent, pairs and small groups argued over abortion rights. Two men on the blue side and two women in purple got into a shouting match that escalated when one of the men touched one of the women. “Frederick Douglass was the result of a rape and he changed the world,” the man said. “So that settles that rape issue.” The woman countered that unwanted children born to poor mothers without access to contraception or abortion were more likely to end up dead or incarcerated. “Once they’re born, you don’t care,” she said.

It’s often difficult to determine where a case is going to fall based on what happens in oral argument. But it was encouraging to see the liberal justices tear apart the law that was a transparent attempt to dismantle abortion rights, under the guise of women’s health. As Lauren Oyler wrote at Broadly“the Supreme Court women just did a fucking awesome job defending abortion rights.” This case comes down to whether the Texas law places an “undue burden” on women’s right to access abortion, a standard set by the 1992 case Planned Parenthood v. Casey. The Texas government argues that the laws are about women’s safety and health, an argument that Ruth Bader Ginsburg demolished in what Mark Joseph Stern called the most important exchange in oral argument:

Seconds after Texas Solicitor General Scott Keller began to speak Wednesday morning, Justice Ruth Bader Ginsburg zeroed in on the “undue burden” question—quickly and mercilessly knocking Keller off balance and setting the tone for the rest of his nearly 40 minutes at the lectern. Ginsburg asked Keller how many women would live 100 miles or more from a clinic if the Texas law went into effect. About 25 percent, he responded—but that didn’t include the clinic in Santa Teresa, New Mexico, just over the border from El Paso. The existence of this clinic featured heavily in the 5th Circuit’s decision to uphold the Texas statute; it asserted that the law did not impose on “undue burden” on abortion-seeking El Paso women, because they could simply cross state lines for the procedure.

“That’s odd that you point to the New Mexico facility,” Ginsburg said, in a clear and firm voice. New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would—standards which, Texas claims, are absolutely critical to protect women.

“So if your argument is right,” Ginsburg continued, “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,” to clinics with more lenient standards, “and that’s perfectly all right.”

“Well,” Ginsburg concluded, with just a hint of pique in her voice, “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?”

The other liberal justices pointed out the lack of consistency in requiring these strict regulations for abortion, but not for other more dangerous medical procedures:

Justices Sotomayor and Elena Kagan said Texas does not similarly regulate other medical procedures that are more risky, including dental surgery and colonoscopies. Doctors can perform those procedures safely in a doctor’s office, without the need for a fully equipped surgical center, they said.

“We know that liposuction is 30 times more dangerous [than an early-stage abortion], yet doesn’t have the same kind of requirements” in Texas, Kagan said.

Justice Stephen G. Breyer, who, like his female colleagues, is a Democratic appointee, also said he could not see a reasonable basis for upholding the restrictions.

For more great highlights from the back and forth, Imani Gandy of RH Reality Check tweeted her reading of the transcript yesterday and pulled out some important points from both sides (complete with fun pictures and Beyonce palate cleanser).

We know where the 4 liberal and 3 conservative justices stand on this issue. The outcome rests on where Justice Anthony Kennedy lands. Irin Carmon asks the question of which Anthony Kennedy will ultimately rule on this case, since his past could point in either direction.

For the good of women in Texas and across the country, we need Justice Kennedy to side with the liberals and take one set of tools out of the anti-choice toolbox. But either way, we will need to take the energy we saw outside the Supreme Court to an aggressive fight for reproductive freedom in the months ahead.

 

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Author: Rebecca Griffin

I am a passionate advocate for progressive causes with over a decade of experience organizing for social change. That organizing experience informs the way I look at the world and the challenges we face in working toward social justice. I started Of Means and Ends to write about social issues I care about and share my thoughts on how we organize in a smart, strategic way. Please visit and join the conversation.

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