Abortion returns to the Supreme Court

[Tilted]

The Supreme Court will hear argument today in Whole Woman's Health v Hellerstedt. That case involves a challenge to two provisions of Texas law that regulate abortion clinics and which many people think (quite correctly I'd say) were intended to limit access to abortion in the state. The legal issues being considered are a bit nuanced, but they might reasonably be seen as boiling down to this: How much deference do state legislatures get when they pass regulations ostensibly meant to make abortion procedures safer for would-be mothers rather than meant to restrict abortion itself. At any rate, this case could be quite impactful going forward when it comes to how much states can do to restrict access to abortions.

Justice Scalia's death likely won't affect the outcome of this particular case, but it may well affect whether the outcome of this particular case has lasting importance. Texas mostly won in the 5th Circuit and a 4-4 vote in the Supreme Court would mean that the 5th Circuit's decision stands. However, that would make it likely that the Supreme Court would be wiling to rehear pretty much the same issues in another case in order to reach a majority decision and establish a lasting precedent. If the present case does end up 4-4, that would mean that Justice Scalia's vote would almost certainly have made it 5-4 such that a (potentially) lasting precedent was set.

On the other hand, if Justice Kennedy sides with the more liberal Justices the decision would be 5-3 and Justice Scalia's death would not have mattered as much for this case (other than to have perhaps deprived us of another of his <insert preferred adjectives here> dissents).

Here is the decision from the 5th Circuit. I'll post a transcript of the oral argument when it's available, that should be some time this afternoon.

 

[TheLibertonian]

See, I've heard this argument before, that it's purely a way to deny abortions to women, and while I think that may be in some ways true, I also find myself questioning the larger global views. Which is where it runs into a hiccup.

The things they are demanding abortion clinics live up to as standards seem to line up fairly evenly with Scandinavian laws regarding abortions, and Scandinavian as we know is the "most feminist friendly" place on earth.

And generally speaking it seems reasonable to have regulations in place for a medical procedure, especially one that can cause serious damage if done uncleanly. I know someone in texas, a woman, and she did mention to me that the conditions in some of these places were just awful.

 

[Tilted]

See, I've heard this argument before, that it's purely a way to deny abortions to women, and while I think that may be in some ways true, I also find myself questioning the larger global views. Which is where it runs into a hiccup.

The things they are demanding abortion clinics live up to as standards seem to line up fairly evenly with Scandinavian laws regarding abortions, and Scandinavian as we know is the "most feminist friendly" place on earth.

And generally speaking it seems reasonable to have regulations in place for a medical procedure, especially one that can cause serious damage if done uncleanly. I know someone in texas, a woman, and she did mention to me that the conditions in some of these places were just awful.

I think that if you get to the point of seriously considering the regulations themselves - whether they are reasonable given the circumstances and observed risks and compared to what's required for other facilities performing other procedures - Texas loses.

 

[TheLibertonian]

I think that if you get to the point of seriously considering the regulations themselves - whether they are reasonable given the circumstances and observed risks and compared to what's required for other facilities performing other procedures - Texas loses.

You're not wrong. But still. I think bringing things up to the scandanavian level is perectly reasonable.

 

[Tilted]

Here is the transcript of this morning's oral argument.

 

[BigBlue]

Here is the transcript of this morning's oral argument.

On face value I see no problem with the Texas law but the argument is a good one.You put these restrictions on an abortion clinic but not a clinic that does lipo suction or breast augmentation,that is wrong.

 

[Hijinx]

On face value I see no problem with the Texas law but the argument is a good one.You put these restrictions on an abortion clinic but not a clinic that does lipo suction or breast augmentation,that is wrong.

Gee It's bad enough going to a hospital now. Mersa and Staph infections abound.
Pass the law that any place an invasion of the skin is planned has to be Kept clean.

Mersa and Sepsis are running wild in today's hospitals. Much less some half assed clinic or abortion den run by quacks and killers.

 

[BigBlue]

Just add the same restrictions to all clinics that do any and all types of out patient surgery.

 

[GregV814]

I have no problem with progressive Democrats wanting to end the cycle...

 

[Tilted]

You're not wrong. But still. I think bringing things up to the scandanavian level is perectly reasonable.

I'm not familiar with what's required in various Scandinavian countries. But I think that what we're talking about here, in Texas, is not reasonable - not based solely on concerns for the safety of the would-be mother.

On face value I see no problem with the Texas law but the argument is a good one.You put these restrictions on an abortion clinic but not a clinic that does lipo suction or breast augmentation,that is wrong.

Just add the same restrictions to all clinics that do any and all types of out patient surgery.

Yeah, that's part of what makes it fairly clear that this isn't really about the safety of the (would-be) mother. The same regulations aren't applied to facilities that conduct other procedures which are significantly more dangerous (e.g. colonoscopies, some cosmetic surgery procedures, some dental procedures).

The requirements don't make sense in this context and they're quite burdensome - burdensome enough to force the closure of many clinics. If they were applied to facilities that did other medical procedures, they'd put many of them out of business as well. That's why they weren't applied to those facilities, they don't won't to force those facilities to close.

The kinds of abortion procedures we're talking about are very safe. We're, e.g., talking about (considerably) less than 1 fatality per 100,000 procedures. Doing a quick back of the envelope calculation, there's more risk of death involved in having to drive the few hundred extra miles (that even the state essentially acknowledges) many woman would have to as a result of these new regulations and the closures that result. Full ambulatory surgical center requirements for facilities, even if they mostly do medical abortions? Seriously? At a cost of perhaps a million dollars for a facility to comply? If the woman has complications, they're likely to happen after she's gone home.

You already had to go to a hospital to have an abortion in Texas if the pregnancy was past 16 weeks. We aren't talking about late stage abortions here. We aren't talking about procedures that require incisions or anesthesia. Some procedures that do require such things don't require that the facility meet the ambulatory surgical center requirements.

As for the doctor performing the abortion having to have admitting privileges at a nearby hospital, that again effectively means that many clinics have to shut down (or stop performing abortions). For various reasons such doctors have a had time getting admitting privileges. For instance, because of ideological opposition some hospitals won't give such privileges to abortion doctors. And if abortions (and various preventative women's health things) are all a doctor does, they aren't going to have need to admit people often enough to meet requirements that are sometimes in place for having admission privileges. Again, we're talking about very safe procedures. (They're safe for the would-be mother. They of course aren't safe for the would-be child. But if the latter is the real reason for the regulations then that effectively means that the regulations aren't constitutional.)

 

[TheLibertonian]

I think they (the sc) will find in favor of the womens health on this one. The arguements are fairly solid. Of course we are at one of those times in history where we could end up with a evenly split court.

 

[Tilted]

I think they (the sc) will find in favor of the womens health on this one. The arguements are fairly solid. Of course we are at one of those times in history where we could end up with a evenly split court.

It'll either end up 4-4 (in which case a full Supreme Court is likely to rehear the basic issues in the not too distant future) or it will go 5-3 against Texas. My bet would be on the latter; I'm maybe 80 - 20 that that's how Justice Kennedy will go. But it's possible that the case will end up back in the district court to develop a factual record relating to how much of a burden these regulations actually will place on women seeking abortions in Texas (as distinguished from how much of a burden they place on abortion clinics). In other words, e.g., how many clinics will close and how far will how many woman then have to travel to get an abortion? I'm including that result in my 80 - 20 for Texas losing, as when it comes to the legal issues involved that would be a loss for Texas.

 

[TheLibertonian]

It'll either end up 4-4 (in which case a full Supreme Court is likely to rehear the basic issues in the not too distant future) or it will go 5-3 against Texas. My bet would be on the latter; I'm maybe 80 - 20 that that's how Justice Kennedy will go. But it's possible that the case will end up back in the district court to develop a factual record relating to how much of a burden these regulations actually will place on women seeking abortions in Texas (as distinguished from how much of a burden they place on abortion clinics). In other words, e.g., how many clinics will close and how far will how many woman then have to travel to get an abortion? I'm including that result in my 80 - 20 for Texas losing, as when it comes to the legal issues involved that would be a loss for Texas.

True. There was a lot of argument that there wasn't enough of that in the initial filing. I cannot entirely disagree with that, since a lot of that data is there.

 

[Tilted]

We will probably get this decision this morning shortly after 10 AM. It's probably going to go 5-3 in favor of Whole Woman's Health. The question is, on what bases? Will the Supreme Court establish new rules relating to states' regulation of abortion providers?

 

[Tilted]

This decision was just released. Justice Breyer wrote for the Court finding that the admitting privileges and surgical center requirements represent an undue burden on abortion access and thus violate the Constitution per Planned Parenthood v Casey.

The vote was 5-3 with the Chief Justice and Justices Thomas and Alito dissenting. Here are the opinions.

 

[Chris0nllyn]

This decision was just released. Justice Breyer wrote for the Court finding that the admitting privileges and surgical center requirements represent an undue burden on abortion access and thus violate the Constitution per Planned Parenthood v Casey.

The vote was 5-3 with the Chief Justice and Justices Thomas and Alito dissenting. Here are the opinions.

Thomas invoking Scalia.

Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Stenberg v. Carhart, 530 U. S. 914, 954 (2000) (Scalia, J., dissenting).

Today’s opinion does resemble Casey in one respect: After disregarding significant aspects of the Court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come. As in Casey, today’s opinion “simply . . . highlight certain facts in the record that apparently strike the . . . Justices as particularly significant in establishing (or refuting) the existence of an undue burden.” 505 U. S., at 991 (Scalia, J., concurring in judgment in part and dissenting in part); see ante, at 23–24, 31–34. As in Casey, “the opinion then simply announces that the provision either does or does not impose a ‘substantial obstacle’ or an ‘undue burden.’” 505 U. S., at 991 (opinion of Scalia, J); see ante, at 26, 36. And still “[w]e do not know whether the same conclusions could have been reached on a different record, or in what respects the record would have had to differ before an opposite conclusion would have been appropriate.” 505 U. S., at 991 (opinion of Scalia, J.); cf. ante, at 26, 31–32.

The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent. United States v. Virginia, 518 U. S. 515, 570 (1996) (Scalia, J., dissenting).

Meanwhile, the Court selectively applies rational-basis review—under which the question is supposed to be whether “any state of facts reasonably may be conceived to justify” the law, McGowan v. Maryland, 366 U. S. 420, 426 (1961)— with formidable toughness. E.g., Lawrence, 539 U. S., at 580 (O’Connor, J., concurring in judgment) (at least in equal protection cases, the Court is “most likely” to find no rational basis for a law if “the challenged legislation inhibits personal relationships”); see id., at 586 (Scalia, J.,dissenting) (faulting the Court for applying “an unheard-of form of rational-basis review”).

The majority’s embrace of a jurisprudence of rights-specific exceptions andbalancing tests is “a regrettable concession of defeat—anacknowledgement that we have passed the point where‘law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.
L. Rev. 1175, 1182 (1989).

I wonder if that'll turn into a thing (more so for the conservative judges).

 

[Tilted]

Thomas invoking Scalia.











I wonder if that'll turn into a thing (more so for the conservative judges).

There's probably a little more of that in this situation because of the nature of the case. And to some extent it may be intentional here with Justice Scalia just having passed, and their realizing that he likely would have had something memorable to say in response to the majority's decision.

But they do that - cite passages from each others' prior opinions (and their own ) - quite often.

 

[Chris0nllyn]

There's probably a little more of that in this situation because of the nature of the case. And to some extent it may be intentional here with Justice Scalia just having passed, and their realizing that he likely would have had something memorable to say in response to the majority's decision.

But they do that - cite passages from each others' prior opinions (and their own ) - quite often.

:The More You Know:



So you were 3 for 3 today?

Voisine for the government (marginally anti-2A); McDonnell for McDonnell; Whole Woman's Health for the clinics (in favor of abortion rights or abortion provider rights - more so the former though).

Those are the three cases remaining for this term. I suspect we'll get all three decisions on Monday.

 

[Tilted]

:The More You Know:



So you were 3 for 3 today?

Well... in this case the pitcher was rolling a kickball right over the plate at 3 mph and I managed to get the bat on a piece of it all 3 times. So... yeah... 3 for 3... but not all that impressive a feat.

 

[Tilted]

:The More You Know:

...

Justice Thomas has been know to write unjoined dissents in which he quotes (and cites) himself from a previous unjoined dissent.