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Supreme Court of the United States Hears Controversial Abortion Case

On March 2, 2016, the Supreme Court of the United States ("SCOTUS") heard oral argument in Whole Woman's Health v Hellerstedt, a critical abortion rights case challenging a 2013 Texas law requiring medical facilities where abortions are performed meet ambulatory surgery center ("ASC") standards and the doctors performing the abortions have admitting privileges at a local hospital. This is the most significant abortion case before SCOTUS since Planned Parenthood v Casey in 1992, in which the Court ruled the states were not allowed to place undue burdens on a woman's constitutional right to an abortion, including "unnecessary health regulations" that imposed a substantial obstacle to a woman seeking an abortion.

In 1973, Roe v Wade established a woman's constitutional right to an abortion. Jane Roe challenged a Texas law that banned all abortions except those necessary to save the woman's life. At that time, most states had laws that either severely restricted or entirely banned abortion procedures. SCOTUS struck down the Texas law criminalizing abortion, and for the first time ruled the constitutional right to privacy includes a woman's decision on whether or not to terminate her pregnancy.

In the current case, the Court once again faces the highly charged issue of a woman's right to an abortion. Supporters of the Texas law assert that the law is intended to protect women's health, while opponents argue it has nothing to do with women's health and safety and is nothing more than a veiled attempt to ban abortions.

With Justice Antonin Scalia's death on February 13, 2016, the Texas case will be decided by a panel of eight justices. It is not unprecedented for only eight justices to rule. Consider the number of cases Justice Elena Kagan had to recuse herself from when she was initially appointed to the bench because of her prior role as solicitor general. However, in Whole Woman's Health v Hellerstedt, having an eight justice panel could have harmful consequences for both women and abortion facilities in Texas. The eight justices appear to be sharply divided, with Justice Kennedy holding the key vote. A 4-4 split decision would result in the Texas law being upheld, the failure to set nationwide legal precedent, and could lead to other states enacting similar anti-abortion legislation.

During oral argument on March 2, 2016, Justices Ginsburg, Breyer, Kagan, and Sotomayor, the Court's four liberal justices expressed concern over the strict regulations the Texas law imposes on abortions doctors and clinics, while Chief Justice Roberts and Justice Alito seemed more inclined to uphold the Texas law. Justice Thomas is expected to vote with Chief Justice Roberts and Justice Alito in favor of upholding the law. Justice Kennedy, who gave no real indication of how he would vote, at one point suggested during oral argument the possibility of remanding the matter for further findings.

Justice Breyer challenged Scott Keller, Solicitor General of Texas, who argued in support of the Texas law, regarding the requirement that doctors have admitting privileges at a local hospital. He commented on how the prior law only required a clinic to have an arrangement with a hospital for the transfer of any patient who suffered a complication. He asked Mr. Keller to identify the evidence of record where women who had suffered complications could not get to a hospital even though there was a transfer agreement in place, but who otherwise could have under the new admitting privileges requirement. There was no such evidence, and Justice Breyer commented on how Judge Richard Posner of the Seventh Circuit, could only find one such instance in the entire country, and he was not certain even that one was accurate.

Justices Breyer, Sotomayor, and Kagen all questioned Mr. Keller on the strict Texas regulations on abortion clinics as compared to other facilities that perform procedures like colonoscopies and liposuction, which have much higher risks than abortions but do not have to follow the same ASC regulations like the abortion clinics do. Justice Sotomayor went so far as to say the Texas "legislature is only targeting abortion."

Also noteworthy, when Mr. Keller was arguing that if the law is upheld, the remaining clinics will be sufficiently located within the most populous cities in Texas, especially taking into account that the Santa Teresa, New Mexico facility will be able to service the women of El Paso, Justice Ginsberg wisely called Mr. Keller out on his statement.

"That's ­­-- that's odd that you point to the New Mexico facility. New Mexico doesn't have any surgical --­­ ASC requirement, and it doesn't have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things. But send them off to... ­­ New Mexico where they don't get it either, no admitting privileges, no ASC. And that's perfectly all right. Well, if that's all right for the ­­-- the women in the El Paso area, why isn't it right for the rest of the women in Texas?"

A decision is expected sometime in June.

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