The chair at the Supreme Court bench normally occupied by Justice Antonin Scalia sits shrouded in black — a somber reminder of the conservative justice’s absence on the occasion of the first petition before the Court regarding abortion industry regulation in nearly a decade.

According to the New York Times, this case is the first major abortion rights cause heard by the Supreme Court since the 2007 case Gonzales v. Carhart. In 1973, Roe v. Wade established the constitutional right to an abortion. In 1992, Planned Parenthood v. Casey determined that states may not place undue burdens on a woman’s constitutional right to an abortion, including “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Much of the petitioner’s argument in today’s hearing on Whole Women’s Health v. Hellerstedt was directed to that issue, with the attorney for Whole Women’s Health (a Texas-based abortion facility chain) arguing that a bill passed by the Texas legislature forced 20 abortion clinics in Texas to close. Eleven closed on the day the regulations went into effect. According to the chain’s attorneys, the closing of these clinics impairs a woman’s right to obtain reasonable access to abortion services, meeting the burden of proof that the legislation violates a woman’s constitutional right to an abortion.

The bill, called H.B. 2, mandates that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed. In addition, all abortion clinics in the state are required to meet the regular Texas standards for ambulatory surgical centers.

Before the Court

The more conservative justices, including Chief Justice John Roberts, closely scrutinized two aspects of the complaint. First, they questioned the timeliness of the petitioner’s filing, since the bill has been law for nearly three years. Roberts asked, “Why did you not challenge the legislation at the time it was put before the court in Texas in 2013”? The attorney for the petitioner replied that they “did not know the law would cause so many closings” — even though the attorney had already stated that 11 facilities closed the day the law went into effect and nine more closed shortly thereafter.

Second, the justices commented they could find nowhere in the petition, or in the amicus briefs, documented reasons for the facilities’ closings. Whole Women’s Health’s attorney became very flustered and confused during the questioning and it appeared for a while that the case might be tossed out for lack of merit, since her focus seemed to be on the “undue burden on the business owners” and not on the “undue burden on women” Casey requires.

The attorney for the State of Texas, solicitor general Scott Keller, confirmed that before the Texas law was passed, Texas had 41 abortion clinics in the state. Now there are about a dozen.

He asked the court to note that Planned Parenthood — which also closed branches after the bill pased — did not protest the original legislation, nor did they close any clinics due to the regulations. Planned Parenthood had already decided to discontinue services in areas “where business was not good,” closing several of their clinics due to lack of demand for abortion and others services. He explained those Planned Parenthood clinics remaining open quickly came into compliance with the newly imposed regulations, as clinics were allowed up to 13 months to make necessary adjustments.

Critical Ginsburg

Justice Ginsburg seemed particularly critical of the state’s argument that the regulations were imposed for “medical reasons” stating that, “It is apparent that many other medical procedures cause a much greater risk than abortion.” Keller countered that several amicus briefs had been submitted that substantiated the high risk of allowing an abortion provider to operate without regulatory oversight, such as did the Gosnell clinic in Pennsylvania, referencing the amicus brief filed by Texas Values and 3801 Lancaster Film Project.

Justice Ginsberg scoffed, “That clinic had no state regulations nor inspections for 16 years. That would never happen in Texas, where everything is overregulated. In Texas the fire inspectors would have caught the problems in their annual inspections. Why don’t you just let the fire inspectors check the abortion clinics and call that good?” The more liberal justices strongly inferred the new regulations might in fact create an undue burden in obtaining abortions by making services inaccessible. 

Justice Anthony Kennedy, who is typically a swing-voter, seemed to err on the side of the more liberal faction of the court, indicating that a tie vote of 4 to 4 — a vote that would sustain the law — might not be a possibility. In the event of a tie, the court will probably decide to hear the case again once a replacement for Justice Scalia is appointed. If Kennedy joins the liberal justices, the 5-3 decision would render the Texas law unconstitutional.

Facilities and Clinics Decline

Proponents of the law argue that the decline in the numbers of facilities has nothing to do with the regulations imposed. A recent Bloomberg Report article states:

Abortion clinics are closing in the U.S. at a record pace. In five states — Mississippi, Missouri, North Dakota, South Dakota and Wyoming — just one remains. American women were having fewer abortions before clinic closings accelerated in the last couple of years. So no one can be sure how much the push to restrict clinics is connected to falling abortion rates.

Indeed the abortion rate has been steadily declining nationally since 2010. An Associated Press exclusive report indicates that abortion is declining in nearly all states. Planned Parenthood’s annual report for 2015 says that 323,999 abortions were performed at their facilities, its lowest year ever.

Proponents also argue that tangible, valid medical reasons exist for implementing the law. “Some 150 abortion providers have faced criminal lawsuits for substandard practices” reports Texas attorney Allan E. Parker, speaking at a press conference held at the Family Research Center. “An average of 10 abortion patients per week have to go to a hospital emergency room due to complications from an abortion and state-wide 210 women per year are hospitalized due to injures sustained in an abortion procedure, so you can imagine what the number would be nationally.” He goes on to say,

Prior to the passing of this state of Texas legislation, abortion clinics were more loosely regulated than nail salons, veterinary clinics and food establishments. … Unfortunately 3,346 of the women injured by abortion could not be here. Please understand they are not just a series of sad stories on the pages of a brief. They are real women, with real lives to live in spite of the real and damaging injuries they sustained at the hands of abortionists. We stand here (in Washington, D.C.) on their behalf today.”

Normally the court would issue its opinion next year. But because this case is irregular, the justices are meeting Friday morning to discuss it. If they divide four to four or decide to send the case back to the lower courts, they may announce the decision as early as next Monday. They may also decide not to decide now. Until they do, the law will continue to apply to all abortion facilities in Texas.