“The most momentous abortion case in a quarter century is thrown into turmoil by the prospect that the court won’t be able to give an answer because it will end in a tie”, says Tom Goldstein, publisher of the SCOTUSblog website and a lawyer who appears before the Supreme Court.
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Kennedy’s questions Wednesday did not make clear where he is headed.
A decision in the case will likely be released sometime over the summer.
Aware of the stakes, the three women on the court took a lead role and said it was obvious to them that Texas lawmakers had singled out abortion clinics for unduly strict regulations that would hurt women rather than protect them, as state officials had claimed.
CBS News says that Justice Kennedy “didn’t tip his hand Wednesday, although he did ask whether the Court should send the case back for more evidence”.
As Nina reported earlier today, the law requires all abortions – either surgical or medical, meaning with pills – to be done in ambulatory surgical centers.
“…As to some of them, there’s information that they closed for reasons that had nothing to do with this law”, Justice Samuel Alito said.
Toti replied that prior to the law the number of abortion clinics had remained stable in the state, then about half closed in a short time. “The complication generally arises after the woman is back at home”, she said. “You take the law out of effect, they reopen”.
The Texas clinics filed three emergency applications with the court over the clinic regulations each time the appeals court reversed a trial judge’s ruling blocking the regulations.
“Abortion activists… are certainly on the wrong side of women’s health on this issue”. Toti argued that an increase was seen in abortions occurring after 16 weeks of gestation, making abortions riskier for women who terminate a pregnancy even later. Does this necessarily mean she is being denied her constitutional rights?
However, a such ruling leaving the Texas law intact could encourage other states with anti-abortion legislatures to pass similar laws. Each of the requirements “is extremely burdensome”, she said.
That same day, Justice Antonin Scalia wrote a forceful response to Breyer in which he wrote that Breyer promised to show why the appeals court was wrong, “but that promise goes unfulfilled”.
Sotomayor questioned the position that a small number of complications would be enough to burden the majority of women who don’t have complications. Abortion providers say the provision already has forced clinics to close because such an affiliation is hard for clinic doctors to obtain. It’s unclear how often women have issues later, even when they return home, such as developing an infection.
Chief Justice John G. Roberts Jr. suggested that there were two separate questions in the case: whether Texas had presented a plausible justification for the law, and whether it had created an unconstitutional burden on women seeking abortions.
“I’m sure there’s medical evidence that if every facility was as good as Massachusetts General, they would (be) better facilities”, Kagan said. So to impose the requirement is to close the clinic.
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As an impetus for the law, proponents have cited the case of Kermit Gosnell, a Philadelphia doctor who was convicted of murder in 2013 for conducting late-term abortions at a filthy clinic.
