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.