TOPICS > Politics > Supreme Court

Scalia’s absence alters dynamic for abortion case

March 2, 2016 at 7:30 PM EDT
The Supreme Court is hearing its first abortion case in nearly a decade, as pro-choice advocates challenge a Texas law they say limits abortion services. Judy Woodruff talks to Marcia Coyle of the National Law Journal for a look inside the high court, and Gwen Ifill gets contrasting views on the case from Cecile Richards of Planned Parenthood and Clarke Forsythe of Americans United for Life.

JUDY WOODRUFF: But first to the Supreme Court, and perhaps the biggest case of this term.

WOMAN: We pray for all of us to have courage.

JUDY WOODRUFF: Activists on both sides were out in force, as the high court heard its first abortion case in almost a decade.

WOMAN: As a religious leader, I believe that every individual has the right to make their own moral decisions.


MAN: Lives are precious to me, even lives conceived in rape, even disabled, even kids that are suffering with multiple surgeries before they’re five. Those kids glorify God.

JUDY WOODRUFF: On the docket, whether a Texas law imposes an undue burden on the right to obtain an abortion. The law passed in 2013, after a filibuster by then-state Senator Wendy Davis that drew national attention. Abortion clinics have to meet something akin to hospital standards and physicians must have admitting privileges at a hospital within 30 miles of the clinic.

The state says its purpose is simply to protect women’s health.

SCOTT KELLER, Solicitor General, Texas: This case is not about overturning Roe vs. Wade. What this case — the issue in this case is, can Texas enact valid patient regulations and improve safety? And when over 210 women annually are hospitalized due to abortion, Texas can.

JUDY WOODRUFF: But opponents say more than half of Texas’ 41 abortion clinics have closed because they can’t meet the new standards. They say the law, known as HB-2, is really a backdoor way to stop abortions.

AMY HAGSTROM MILLER, Plaintiff/CEO, Whole Woman’s Health LLC: It has been a long and arduous road that has led us to this day, but that is nothing compared to what the women of Texas will face if HB-2 is not struck down. This law is cruel and it is harsh and it does nothing to advance medial health for women.

JUDY WOODRUFF: What the high court will do is even more of a guess than usual, since the death of conservative Justice Antonin Scalia. If there’s a 4-4 split, a lower court ruling that affirmed the Texas law may stand for now.

And we take a closer look inside the court now, with Marcia Coyle, chief Washington correspondent for “The National Law Journal.”

Marcia, so, abortion back in the court after a long, long spell of nine years. How did it all unfold today?

MARCIA COYLE, The National Law Journal: Well, as you explained, the issue before the court is whether these regulations create an undue burden on a woman’s right to choose. And, if it does, they’re unconstitutional.

But what does undue burden mean? The Supreme Court said in 1992 that an undue burden is unnecessary regulations with having the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.

So, during the arguments today, first up was the clinic’s lawyer, and she faced aggressive and skeptical questioning by Justice Alito on the effect of these laws. He didn’t seem persuaded that the clinics had presented hard and sufficient evidence that the laws, the regulations at issue here were — really had the effect of closing the clinics that closed or that the remaining clinics had the capacity — did not have the capacity to handle the demand for abortions by Texas women.

On the other side, Justices Kagan, Sotomayor and Ginsburg also had aggressive skeptical questioning directed at Texas’ lawyer. There, they focused on the purpose. Why did Texas do this? Texas says to protect women’s health.

Justice Kagan, for example, asked, well, listen, abortion is considered one of the safest medical procedures, outpatient procedures today. In fact, the risk is less than liposuction. It’s less than some procedures in a dentist’s office. Why don’t those procedures require being done in ambulatory surgical facilities?

JUDY WOODRUFF: So, so much of the focus today, Marcia, was on Justice Anthony Kennedy, seen as a swing vote, already a swing vote, if Justice Scalia were alive. Now that he’s gone, we’re looking at an eight-member court. What role was Kennedy playing? What was he saying today?


Justice Kennedy suggested a couple of things here that are very interesting. First, for the clinic’s lawyer, he’s picking up on Justice Alito’s questions about evidence. He said, would it be helpful if we sent the case back to the lower court, so that both sides could put in evidence on the effect of these regulations?

That’s what we call a remand to the lower court. But he also said to the Texas lawyer on the purpose here, could it be having the opposite effect? Could these regulations actually be increasing the number of surgical late-term abortions with higher risks?

And he noted that, nationally, abortions that are done by drugs, medically-induced abortions are on the rise, but, in Texas — yes, they’re on the rise — but, in Texas, they are decreasing. So, he offered maybe a way for the court to avoid a 4-4 split, which the court generally doesn’t like to do.

JUDY WOODRUFF: The consequences of this case, as we suggested, Marcia, are bigger than just Texas.

MARCIA COYLE: Absolutely.

Even though — if the court were to split 4-4, the ruling would only pertain to the states that are covered by the Fifth Circuit, these battles in courts are going on all around the country. And I think both sides were looking to the Supreme Court for a decision that would resolve these battles. So it does have implications beyond Texas.

JUDY WOODRUFF: A sense just quickly, Marcia, of Scalia’s absence. Has that now — how does it feel, I guess I’m asking, in the court?

MARCIA COYLE: It’s very noticeable because he always was a very dominant figure during the questioning.

And certainly on the culture war issues, including abortion, his voice was always heard. He also didn’t believe that Roe v. Wade was constitutional. So, I think he clearly would have been on the side of Texas in upholding these regulations.

JUDY WOODRUFF: Marcia Coyle in the courtroom, once again, thank you.

MARCIA COYLE: My pleasure, Judy.

GWEN IFILL: Now we get opposing views from two people who were also in the room for today’s arguments, first Cecile Richards, president of Planned Parenthood, which challenged the Texas law.

Ms. Richards, part of the discussion in the courtroom today was about undue burden, about whether what the Texas law was allowing would place undue burden on women seeking abortions. How did that play out for you, for your argument?

CECILE RICHARDS, President, Planned Parenthood: Well, I thought it was very clear, and particularly the solicitor general made a very good point. He just put it quite succinctly. He said, if a woman has a right that she can’t exercise, it really isn’t a right.

And I think the case that was made about what’s happened to women in Texas, particularly women who live in rural areas, who live in areas that are not covered or are hundreds of miles away from an abortion provider, that is an undue burden.

And I think on the flip side, too, the state was completely unable to make the case that there was any medical benefit at all to women with the new restrictions that have been put in place.

GWEN IFILL: Justice Kennedy expressed some doubt today during these arguments about whether this shouldn’t just be bounced back to the lower court. What effect would that have on your argument?

CECILE RICHARDS: Well, I don’t know — there’s obviously a very — now that there’s only eight justices on the court, I think there are a lot of different things that could happen.

But the women in Texas that are suffering right now, I think it’s really important that this law be overturned, because we see at Planned Parenthood every day the burdens that women face to access safe and legal abortion care.

As we know, dozens of centers have closed in the state of Texas already, and I think it’s time we actually restore access in the state. So I hope that, actually, that the judges will hear, I think, the voices of women, which to me were very present in the room today, in the courtroom today, and rule that this is an unconstitutional law and one that needs to be overturned.

GWEN IFILL: But if there is a 4-4 decision with the case, the court as it is currently configured, that would be a defeat for you, wouldn’t it, upholding the previous law?

CECILE RICHARDS: It would be a defeat for the women of Texas, absolutely.

And I really hope that’s not what happens. I think that the lawyers made a very compelling case, and the justices were quite compelling about what the burden has been on women. And you know, the state has made — somehow made — tried to make the argument that this was for the benefit of women’s health.

But, in fact, every reputable national medical organization, from the American Medical Association to the obstetricians and gynecologists, to family physicians, have said not only are these laws not beneficial for women’s health, they do nothing to help women, they actually are harming women, because women are delaying care and making it much harder, particularly for women who are low-income in the state of Texas, to get access to a safe and legal abortion.

GWEN IFILL: You have alluded a couple of times to the burden on women, the women of Texas.

Give me some examples of exactly what would happen or what has happened to women seeking abortions in these areas of the state which now don’t have those facilities.

CECILE RICHARDS: Well, we have already seen a report out of Texas that tens of thousands of women have tried to self-induce abortions.

And I think that is — for anyone in this country who remembers the days before Roe vs. Wade, when young and healthy women were dying in emergency rooms across this country…

GWEN IFILL: How do we know that has to do with this law, though?

CECILE RICHARDS: The fact that women — because they haven’t been able to get access to care.

And I will give you an example. I was just actually in Fort Worth, Texas, this weekend, and a young woman came up to me. And, fortunately, she was able to get care, but she said she had to drive 400 miles because she lived in deep West Texas, and there was no other provider.

Even the state today admitted that the lack of a health care provider in El Paso meant women were driving to other states. And I think one of the things, Gwen, that didn’t come up today, but I think is really important, is this case is not just about Texas, because we’re already seeing in the state of Louisiana a similar law that is causing now the closure of other women’s health centers in Louisiana.

Ironically, women have been driving from Texas to Louisiana to have access to an abortion provider. Now, if you end access in Louisiana and Texas, and then soon Mississippi, you’re talking about a whole area of the country where potentially women will not have access to abortion services.

GWEN IFILL: It’s been a while since we have seen an abortion debate at the high court. How does this compare to, say, the partial-birth abortion ban debate in 2007?

CECILE RICHARDS: Well, I think two things that were really striking to me.

One, of course, is that the state has argued that this is somehow to benefit women’s health. And I think it was clearly stated today there is zero evidence that in fact it is about women’s health, and it actually has been devastating for women.

The other thing that really struck me was the difference of having three women on the Supreme Court. I think that all the justices obviously are important in that court, but it really makes a difference to begin to have a court that more reflects the diversity of this country, and I think women who can really speak from a woman’s point of view, just how impactful these kind of laws that specifically target women and women’s access to health care, how impactful they are.

And I was really grateful to have the women’s voices in the room.

GWEN IFILL: Cecile Richards, president of Planned Parenthood, thank you.

CECILE RICHARDS: Good to see you, Gwen.

GWEN IFILL: And now the other side.

Clarke Forsythe is acting president and senior counsel for the anti-abortion rights group Americans United for Life.

I was just asking Cecile Richards from Planned Parenthood about the undue burden argument. That’s the argument in which they are challenging whether this law, this Texas law should be upheld — what — or overruled.

What do you think about the argument that there is an undue burden being placed on women?

CLARKE FORSYTHE, Senior Counsel, Americans United for Life: There is no undue burden.

These are very important medical regulations, very important health and safety regulations. There have to be ambulatory surgical treatment standards. And you would want every clinic to meet those standards.

Every part of those standards has a medical logic and a grounding in medical practice. Dr. Donna Campbell was a state senator who testified in support of these regulations in the Texas Senate, 23 years an emergency room physician, and she testified to the medical logic behind every part of the ambulatory surgical standards, ASC standards.

There is also an absolute medical logic behind admitting privileges. It involves continuity of care between the performing surgeon and the receiving surgeon in any hospital if there are complications.

You wouldn’t want to go to a clinic that didn’t meet ASC standards. You wouldn’t want to go to a clinic in which the doctor didn’t have admitting privileges. I wouldn’t want my wife or one of my five daughters to go to any clinic that didn’t meet these standards.

GWEN IFILL: Is the argument before the court about medical logic or medical standards, or is it about access for rights that women under the Constitution or under the laws that currently exist already have?

CLARKE FORSYTHE: There is no right to an unsafe abortion.

Access doesn’t mean anything if it’s not safe, and you have safety for patients by meeting medical standards. These are pervasive. ASC standards are pervasive across the country. The real question in this case is, why are these generally applicable longstanding standards not applicable to abortion clinics?

And the Supreme Court for 43 years since Roe vs. Wade has never allowed states to pass health and safety regulations in the first trimester, when 90 percent are done. This is a landmark case, because the has not permitted that. The court is the national abortion control board.

They control standards in every clinic, in every state from coast to coast, and they have never allowed health and safety regulations in the first trimester. This is a landmark case.

GWEN IFILL: How different is the — are the options now for you with a 4-4 court with Justice Scalia’s absence? Does it change what you expect the outcome to be?

CLARKE FORSYTHE: Well, based on what I heard in the courtroom today, I think the most likely result is a 4-4 split.

This has happened before in an abortion case during the Bork vacancy, before Justice Kennedy was confirmed in 1988. And a 4-4 split means the lower court’s decision is what is called affirmed by an equally divided court.

It means the lower court’s decision stands, and in this case…

GWEN IFILL: Which would be a victory for you.

CLARKE FORSYTHE: And in this case, a victory for Texas, a victory for patient care in Texas, but it wouldn’t have applicability to any other state.

And so most likely, the court would have to revisit this issue in 2017 or 2018.

GWEN IFILL: Justice Kennedy was apparently musing aloud today in the court about the possibility of just sending this back to the lower court again.

CLARKE FORSYTHE: That’s a possibility.

But if Justice Kennedy scrupulously applies his 2007 opinion in Gonzales vs. Carhart for five justices, he will uphold these standards, because you don’t get two bites at the apple to make claims and then repeatedly make claims.

The clinics had all the time in the world to make their claims and all the time in the world to put their facts in about the burden of these things, and they failed to.

GWEN IFILL: The 2007 — I just want to clear it up — the 2007 decision you just referred to is the partial-birth abortion ban.


GWEN IFILL: How different is the situation now, in 2016, than it was in 2007, when the court acted on that?

CLARKE FORSYTHE: Well, if the court scrupulously applies the standards in 2007, they should uphold these regulations.

But this is a unique case, because it’s the first time the court has had a solid record of facts on — in protecting maternal health. And the court has never had that before. I was hoping — I hope it’s eye-opening for the court to see the need for health and safety regulations, the short-term and long-term risks, and the fact that access doesn’t mean anything if you have got substandard conditions and substandard providers.

And that’s why these standards are so important.

GWEN IFILL: Clarke Forsythe, president, acting president of Americans United for Life, thank you very much.