SCOTUS & Abortion, Minus Scalia

[T]here are three women on the court. And if you count Justice Stephen Breyer as one of history’s great feminists—and I do—then you can view the arguments in this term’s landmark abortion case, Whole Woman’s Health v Hellerstedt [a Texas case], as creating a neat 4–4 split. On one side, you have a group of testy male justices needling a female lawyer for Texas clinics about whether it was even appropriate for them to hear this appeal. On the other, you’ve got four absolutely smoking hot feminists pounding on Texas’ solicitor general for passing abortion regulations that have no plausible health purpose and also seem pretty stupid.

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Time limits were flouted to such a degree that Chief Justice John Roberts pretty much gave up enforcing them. I counted two instances in which Roberts tried to get advocates to wrap up as Justices Ruth Bader Ginsburg and Sonia Sotomayor simply blew past him with more questions. There was something wonderful and symbolic about Roberts losing almost complete control over the court’s indignant women, who are just not inclined to play nice anymore.

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Each of the female justices takes a whacking stick to the very notion that abortion—one of the safest procedures on record—requires rural women to haul ass across land masses larger than the whole state of California in order to take a pill, in the presence of a doctor, in a surgical theater.

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So frustrated is Justice Elena Kagan by the conservatives’ repeated insistence that perhaps the clinics just coincidentally all closed within days of HB 2’s passage that she finally has to intervene. “Is it right,” she asks [the Texas clinics' attorney Stephanie] Toti, “that in the two­-week period that the ASC requirement was in effect, that over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately?” Toti agrees. “It's almost like the perfect controlled experiment,” continues Kagan, “as to the effect of the law, isn’t it? It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen?”

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Sotomayor decides that she has some things to say: “There’s two types of early abortion­­ at play here. The medical abortion, that doesn't involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?” Toti explains that the woman has to take them at the abortion facility under Texas law.

Sotomayor is back: “I'm sorry. What? She has to come back two separate days to take them? ... When she could take it at home, it’s­­ now she has to travel 200 miles or pay for a hotel to get those two days of treatment?”

Toti confirms that there is no reputable evidence that there is a medical benefit to having a medication abortion at “a ­multi-million­-dollar surgical facility.”

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Then Sotomayor asks why a dilation and curettage associated with a miscarriage can be performed in a doctor’s office whereas a basically identical D&C must be performed in an ambulatory surgical center when it’s for an abortion. Toti replies, and Sotomayor keeps talking. The chief thanks Toti but Sotomayor forges on, wondering if any other medical procedures require taking pills in a hospital. No, says Toti. Sotomayor is finally content to rest her case.

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The remainder of the argument basically just consists of the four liberal justices pounding away on Texas Solicitor General Scott Keller.

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Ginsburg: “I can't imagine. What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?” Then Kennedy asks Keller a surprising question: Is the effect of this law “to increase surgical abortions as distinct from medical abortions,” he wonders, because “this may not be medically wise.”

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Then it’s Kagan who moves in. Calmly, poker-faced, she asks Keller: “You said that as the law is now … Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards … for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work? Am I right?” Keller agrees. Then Kagan asks: “And I guess I just want to know, why would Texas do that?” Keller says complications. [...] Kagan says that liposuction actually has greater complications. Keller says Kermit Gosnell. Kagan says nothing that happened in the Gosnell case could have occurred under Texas’ pre-existing regulations. Sotomayor says colonoscopies have more complications. Finally, Keller says, “But legislatures react to topics that are of public concern.” And that is what matters. Not women’s health. Politics.

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If the case is sent back to Texas on remand, we will play this out again in a few years with nine justices. But it’s hard to imagine President Obama conjuring up, from even the darkest, most devious underground lab, a new justice who would be half as fierce as the four-car train of whoop ass we saw today.

  Slate