If Justice Anthony Kennedy were a character from Lord of the Rings, he would be Treebeard the Ent—a giant walking tree who makes up his mind in his own time and then goes wherever he is going without worrying much about what’s in the underbrush.
And that’s why the big news out of Wednesday’s argument in Whole Woman’s Health v. Hellerstedt is that Kennedy—the swing vote—wants to get the Court out of this case. Treebeard isn’t ready to decide the issue, and so he is searching for an off-ramp. After the argument, the most likely outcome seems to be “remand”—meaning that the Court sends the case back down to the Fifth Circuit with instructions to consider it again.
The first hint came during the argument by Stephanie Toti, representing a coalition of abortion providers. Under a Texas law, passed in 2013, abortions may only be performed (1) by physicians who had “admitting privileges” to a hospital within 30 miles of the clinic, and (2) in an “ambulatory surgical center.” Together, those requirements will impel the closure of about 34 of the 40 abortion clinics in the state.
In the most recent year for which figures are available, about 70,000 legal abortions took place in Texas. The clinics that will remain open accounted for only 14,000 of those. The state, Kennedy mused aloud, was going to argue that these clinics could handle the demand for abortions. “Would it be A, proper, and B, helpful, for this Court to remand for further findings on clinic capacity?” he asked Toti.
Toti, like any good lawyer, argued first that the evidence already in the record should tip that question in favor of the challengers. But, even though this was Toti’s first high Court argument, she recognized that a possible life line was being thrown. “If the Court had any doubts about the capacity of the remaining clinics,” she said, “a remand would certainly provide [the challengers] with the opportunity to supplement the evidence already in the record.”
Capacity came up again in a colloquy by U.S. Solicitor General Donald Verrilli. (The Obama administration has entered the case to argue that the Texas law is unconstitutional.) “Do you think the district court would have had discretion … to say, We’re going to stay this requirement for two-and-a-half, three years, to see if the capacity problem can be cured?” Kennedy asked. Verrilli wisely refused to take a position; but the possibility of some kind of remand for an interim remedy was hanging in the air again.
Kennedy gave a different kind of hint in a question to Scott Keller, representing Texas, who was arguing to uphold the law. The new restrictions require all abortions to be performed in “ambulatory surgical centers”—much larger and more elaborate than most free-standing abortion clinics. That requirement even applies to “medical abortions”—meaning abortions achieved by giving a pregnant woman two pills, spaced between two and seven days later. Under Texas’s new laws, a pregnant woman must come to a surgical facility—twice—simply to take the pills. That could mean two 300-mile round trips just to take a pill that elsewhere women take at home. That makes medical abortion far harder to get.
“[M]y reading indicated that medical abortions are up nationwide but down significantly in Texas,” Kennedy told Keller. “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.”
If you are the state of Texas, you don’t want the Court thinking the state is not medically wise. Texas’s position is that the new laws make women healthier, a question to be solely decided by the all-knowing, benevolent legislature. If Treebeard thinks the new law is not “medically wise,” then, Austin, we have a problem. That might mean he’s considering remand for more facts on the medical-abortion issue as well, or he even possibly (though it’s unlikely) is considering a decisive vote to strike down the law altogether.
The district court had concluded that the regulations were not imposed for any real medical purpose. Thus, it held, they imposed an “undue burden” (also called a “substantial obstacle”) on the right to choose abortion in Texas. The Fifth Circuit panel, however, reversed that judgment. The “undue burden” test, it said, required a state only to pinky-swear that its laws were honest-to-god, for-real, genuine, health-type laws; for a reviewing court, that meant game over.
This is the first major abortion case in nearly a decade. Since Justice Antonin Scalia died last month, there is a real possibility that the result will be a 4-4 tie vote, meaning that the Fifth Circuit’s order would be affirmed without explanation, and the clinics would close for good. That would be, from the Court’s point of view, a very bad result. First, since other courts of appeals have rejected precisely the same kind of laws, it would mean that abortion would be available or not available depending on an accident of geography. Second, one major party has already announced that the next Supreme Court justice is going to be elected in November. A party-line tie would suggest even more strongly that the Court is just another battleground in the all-out warfare between the parties.
So if Kennedy were looking for a way out, it wouldn’t be surprising. He is the last remaining author of the opinion in Planned Parenthood of S.E. Pennsylvania v. Casey, which invented the “undue burden” test. In 1992, the authors of that opinion firmly hoped they were “resolving” the abortion battle by giving states more leeway to regulate abortion, while at the same time “reaffirming” the core right to choose abortion before viability. Peace, however, did not break out, and the issue is as contentious today as it was a quarter-century ago.
On the strength of Wednesday’s argument, the four moderate liberals are hanging tough on this one. The “health” rationale was a pretext, they suggested; Texas doesn’t regulate any other health procedures this strongly, including some that are far more dangerous. Justice Stephen Breyer noted that a colonoscopy (which doesn’t need to be done in an ASC) is 28 times more dangerous than a pre-viability abortion. Justice Elena Kagan said that liposuction is 30 times more dangerous. Justice Ruth Bader Ginsburg pointed out that childbirth itself was a good deal more dangerous than abortion; Justice Sonia Sotomayor noted that even aspirin causes complications some of the time.
Breyer, who can often find six nuances in a parking-meter violation, was relentless Wednesday. He demanded to know of one case—just one!—where “admitting privileges” would have made a difference: “[G]o back in time to the period before the new law was passed,” he said. “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 [with a local hospital] 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?” Judge Richard Posner of the Seventh Circuit, Breyer noted, “says he could find in the entire nation, in his opinion, only one arguable example of such a thing, and he’s not certain even that one is correct.”
Keller was finally reduced to an oblique admission that politics was behind the law. “Legislatures,” he said, “react to matters of public concern.” After the Kermit Gosnell scandal—in which three deaths occurred in a Pennsylvania abortion clinic that the state had never inspected—public concern focused on clinics. To the public mind, relative risk doesn’t matter, he implied, and doesn’t need to.
Chief Justice John Roberts and Justice Samuel Alito seem committed to upholding the Texas law. Alito repeatedly suggested that the challengers hadn’t even proved that the new law caused any clinics to close; even though 11 had closed on the day the new law took effect, he implied, that might have been a coincidence. Verrilli turned into Encyclopedia Brown, spouting record evidence showing that the clinics closed because of the new law—and opened again when the law was temporarily blocked. In her rebuttal, Toti pointed out that the state itself had already stipulated that the law would close all the free-standing clinics.
Chief Justice John Roberts focused on the issue the Fifth Circuit relied on. The law has something to do with health, he suggested; why isn’t that enough? So what if the legislature really wanted to block as many abortions as possible? “What difference does it make what the purpose behind the law is in assessing whether the burden is substantial or undue?” All that matters is how many women it will literally block from choosing abortion; if not all that many, then no problem.
The only honest way for the Court to uphold the Texas law would be to admit just that—that the “undue burden” test means only that legislatures must keep a straight face as they abolish legal abortion step by step. “If … this law is upheld,” Verrilli told the Court, “what you will be saying is that this right exists only in theory.”
Kennedy is not a fan of abortion; but he would not want the Court to look disingenuous. No wonder he is looking for a path out of the woods.