If You Need to Understand the Stakes of This Election, Look to Today's Supreme Court Case

By Charles Pierce, Esquire

03 March 16

 

Everyone needs to pay attention right now.

oday, the Supreme Court heard its most important case since the death of Antonin Scalia, in what most people believe is a 4-4 tie on issues like abortion rights. Whole Women's Health v. Hellerstedt is a test of a Texas law, which is of a piece with all the similar ones that popped up all over the country after Justice Anthony Kennedy opened the door in Carhart, that created the legal absurdity by which women still have the right to choose, but states have nearly unlimited options by which they can make that right impossible to exercise.

The Texas law—HB1—is the same legislation that led to Wendy Davis' vain but herculean filibuster in the Texas legislature. It placed certain restrictions on abortion providers that were designed to force most of them to close, especially those serving poor women and women in rural parts of the state.

In Whole Woman's Health, the Supreme Court will consider two provisions of HB 2: the requirement that abortions be performed only in ambulatory surgical centers, hospital-like facilities usually used to perform outpatient surgery, and the mandate that doctors performing abortions have admitting privileges at a nearby hospital. Medical groups, including the American College of Obstetricians and Gynecologists, have repeatedly noted that these restrictions are not necessary to provide safe abortion care, while anti-abortion groups contend that the restrictions are crucial to protect women's health.

At issue is the concept of "undue burden," which was central to the 1992 Casey decision in which the Court first took the trimmers to Roe v. Wade. Thus did state legislators redefine "undue burden" so as to eliminate any roadblock they could throw up short of having the women walk a tightrope over a lake of fire. Were Scalia still alive, we probably could count on this redefinition being further expanded. Now, though, it seems from the oral arguments that the best the defenders of the law can hope for is that the case gets kicked back down the food chain, not only because it would seem to be Kennedy's preference that the whole thing go away for a while, but also because Justices Ruth Bader Ginsberg and Elena Kagan were not buying an ounce of Texas' argument that they only ever had the interests of the ladies at heart.

First, RBG caught Texas Solicitor General Scott Keller (and the law he was defending) making no distinction between medical abortions, which involve pills, and surgical abortions, and she was curious as to why a clinic specializing in the former would need to meet the standards of a surgical center.

GINSBURG: What is the benefit of the medical, the two pills that you take, what is the benefit of having an ambulatory surgical center to take two pills when there's no surgical procedure at all involved?

KELLER: Two responses, Justice Ginsburg. First, the complication rates are greater. When there's a complication rate from a drug-­induced abortion, then a surgical abortion is needed as a follow­up.

GINSBURG: On that complication, that complication is likely to arise near the women's home, much more likely to arise near her home, which the 30 miles has nothing to do with.

Then Kagan went to town, exposing even further the mendacity of the Texas legislature in masking its intention with mock concern for a woman's health.

KAGAN: General, could I ask—could I go back to a question that­­ something that you said earlier? And tell me if I'm misquoting you. You said that as the law is now, under your interpretation of it, 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, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work. And you said that that was your understanding of the law; am I right?

KELLER: Correct, in this Court's —in Simopoulos.

KAGAN: And I guess I just want to know why would Texas do that?

KELLER: When there are complications from abortion that's in the record, Texas can enact laws 17 to promote safety.

KAGAN: No, I know, but the assumption of the question, and I think you haven't challenged this assumption, is that there are many procedures that are much higher risk: Colonoscopies, liposuctions, we could go on and on. And ­­you're saying, that's okay, we get to set much higher standards for abortion. And I just want to know why that is.

Keller disappeared into a cloud of squid ink concerning the convicted murderer Kermit Gosnell from Philadelphia, which is a fine conjuring spell if you're sparring with Megyn or Greta or Sean, but which turned out to be sadly inadequate outside of the studios of the Fox News Channel.

KELLER: Justice Kagan, this bill was passed in the wake of the Kermit Gosnell scandal that prompted Texas and many other States to reexamine their abortion regulations.

KAGAN: But, of course, Texas's own regulations actually have made abortion facilities such that that can never happen, because you have continual inspections, I mean, to your credit. So that was really not a problem in Texas, having a kind of rogue outfit there. Texas has taken actions to prevent that. So, again, I just sort of—I'm left wondering, given this baseline of regulation that prevents rogue outfits of—like that, why it is that Texas would make this choice. And you say you're allowed to make this choice, and we can argue about that. I just want to know why Texas would make it.

As I said, my intuition is that the Court's going to punt on this one, but, at the very least, once again, the stakes of the upcoming presidential election are clear in this case, where there is no ideological majority any more and, therefore, no longer a constituency for ridiculous bad-faith arguments like the ones made in defense of this Texas law, which was passed to eliminate abortions. Period. Maybe the Court no longer is required to believe nonsense just because it has five votes.