On Wednesday, the Supreme Court heard oral arguments in Whole Woman’s Health v. Hellerstedt, a case that could determine how far states may go in regulating abortions without violating a woman’s constitutional rights.
What’s at stake in this case?
There are two Texas provisions being challenged: The first requires abortion clinics to meet the standards of ambulatory surgical centers. The other provision requires doctors to obtain admitting privileges at local hospitals, which would allow the doctors to treat patients there in case of emergencies.
Five other states, including Virginia, require first-trimester abortions to be performed in the hospital-like settings Texas requires. At least nine have the same type of admitting-privileges requirement, according to the Center for Reproductive Rights. Other states have different versions of both.
Texas argues that its 2013 law is meant to ensure the safety of women undergoing abortions and doesn’t “have the purpose or effect of creating a substantial obstacle to abortion access.”
But abortion providers say the regulations are nothing more than a ruse by antiabortion legislators and governors. The number of clinics in Texas has dropped from about 40 to 19 since portions of the law went into effect. If the providers lose at the Supreme Court, they say the number will drop to 10 for a population of 5.4 million women of reproductive age.
Twenty-three states are supporting Texas, an indication that other states will consider the restrictions should the Supreme Court give the green light.
So why did this case go to the Supreme Court?
Abortion rights groups do not consider the Supreme Court a friendly environment. But the law’s full implementation would have such an impact in the nation’s second-largest state that they felt they had no choice but to ask the Supreme Court for a ruling.
And Nancy Northup, president of the Center for Reproductive Rights, said a decision from the high court was inevitable. “The cases just keep coming,” she said
Lawyers will make their cases and answer questions from the justices Wednesday. How much do oral arguments affect the justices’ rulings?
Justices say the arguments are a time for them to question the legal reasoning advanced by the parties in their briefs. The justices say that sometimes, but not often, oral arguments will affect the outcome of the decision.
What else do the justices consider?
They consider the court’s precedents on the issue, their own theories of constitutional and statutory interpretation, and friend-of-the-court briefs submitted by interested parties. But, as Justice Ruth Bader Ginsburg has said, the case is most often decided based on the written briefs submitted to the justices.
What will we know at the end of arguments on March 2?
The justices sometimes reveal their thinking on the case through the kind of questions they ask the lawyers in front of them. It is also the first time the justices discuss the case themselves, so the way they ask questions is sometimes a signal to the rest of the court.
What happens next?
The court will meet Friday and vote on the case. This will probably determine the outcome, though the public may not know the result for several months.
Well, when will we know?
That depends partly on whether there are five votes for one side or the other. A decision as important as this one tends to take some time. The ruling will be issued once the majority has agreed upon an opinion and, if there are dissenters, when those opinions are ready as well. The court’s only deadline is that it tries to finish its work by the end of June.
Whom should we watch?
Justice Anthony M. Kennedy is the key. The calculation assumes that the court’s four liberals — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — will agree with abortion providers that Texas’s law is too onerous.
Kennedy isn’t the rescuer that abortion rights supporters would wish for. In his nearly three decades on the court, he has upheld every abortion restriction he has ever considered save one. The exception was a Pennsylvania law that required pregnant women to notify their husbands before seeking an abortion.
He is the remaining justice of the trio who in 1992 set the current test for when abortion restrictions go too far. In Planned Parenthood v. Casey, Kennedy and Justices Sandra Day O’Connor and David H. Souter upheld the basic framework of Roe v. Wade, finding that a woman’s right to an abortion is protected by the Constitution.
The opinion also recognized that states have an interest in protecting potential life but that restrictions could not impose an “undue burden” on a woman’s right to an abortion before fetal viability.
What does Justice Antonin Scalia’s death mean for the outcome?
It would seem to eliminate the possibility that abortion opponents can win the sort of victory they once had hoped for.
If the court is tied, the decision of the U.S. Court of Appeals for the 5th Circuit would be upheld. That would mean full implementation of the law, a major blow for abortion providers in the state. But the decision would have no value as a precedent for the rest of the country. For instance, the U.S. Court of Appeals for the 7th Circuit has struck down a Wisconsin law regarding admitting privileges for doctors. That ruling would be unaffected. A decision for the entire nation would wait for a full nine-member court.
But if the abortion providers get Kennedy’s vote for a five-member majority, the ruling that the Texas law constitutes an undue burden would have national implications. Abortion rights groups say states have adopted more than 200 restrictions over the past five years.
Who writes the opinions?
If Chief Justice John G. Roberts Jr. is in the majority, he can choose to write the opinion or assign it to someone else in the majority. If he is not on the prevailing side, the senior justice in the majority gets that option. A justice who agrees with the outcome but not the legal reasoning of the decision may write what is known as a concurring opinion. Dissenters may also write for themselves.