Yesterday, the Supreme Court heard Whole Woman’s Health vs. Hellerstedt, a challenge to Texas’s HB2, a wide-ranging bill whose purpose is largely to regulate abortion providers into non-existence. From requiring clinics to abide by the same building codes as a surgical center, to requiring physicians to have admitting privileges in nearby hospitals, the TRAP laws have been successful with its intended goals; before HB2 went into effect Texas had 41 clinics, it now has 18. At stake yesterday was whether or not HB2 went too far, placing an “undue” burden on the women of Texas, many of whom drive hundreds of miles and take days off of work because the state’s mandatory waiting period.
And, to be clear, the stakes are high. If HB2 is allowed to stay in place, more clinics will close and more states will pass similar laws (Florida is slated to pass an omnibus bill similar to Texas’s). But as Dahlia Lithwick at Slate points out, there was one primary difference between yesterday’s arguments and 1992's arguments in Planned Parenthood vs. Casey (the case that gave states the right to regulate abortion providers): namely, there are more women on the court.
During Casey, Sandra Day O’Connor was the lone woman on the court. Yesterday, Elana Kagan, Ruth Bader Ginsburg and Sonia Sotomayor relentlessly challenged the oft-repeated language that TRAP laws “protect women,” and that regulating abortion providers into the ground is the beneficence of the state.
It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules. Time limits were flouted to such a degree that Chief Justice John Roberts pretty much gave up enforcing them. I counted two instances in which Roberts tried to get advocates to wrap up as Justices Ruth Bader Ginsburg and Sonia Sotomayor simply blew past him with more questions. There was something wonderful and symbolic about Roberts losing almost complete control over the court’s indignant women, who are just not inclined to play nice anymore.
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Ginsburg, Kagan, and Sotomayor relentlessly challenged Texas’s argument, probing the state’s reasoning that regulating abortion providers was done solely out of concern for the well-being of women. Kagan pointed out that liposuction was more dangerous than abortion, and Sotomayor said to Scott Keller, Texas’s solicitor general, “According to you, the slightest health improvement ... is enough to burden the lives of a million women.”
Sotomayor and Kagan volleyed back and forth, slowly unraveling the thinly-veiled argument that HB2 is really invested in the medical safety and protection of women. Lithwick writes:
[...] Calmly, poker-faced, [Kagan] asks Keller: “You said that as the law is now … Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards … for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work? Am I right?”
Keller agrees. Then Kagan asks: “And I guess I just want to know, why would Texas do that?” The room erupts. Keller says complications. Kagan says that liposuction actually has greater complications. Keller says Kermit Gosnell. Kagan says nothing that happened in the Gosnell case could have occurred under Texas’ pre-existing regulations. Sotomayor says colonoscopies have more complications. Finally, Keller says, “But legislatures react to topics that are of public concern.” And that is what matters. Not women’s health. Politics.
The three justices, with some help from Stephen Breyer, questioned Keller from nearly every possible angle, taking legal issue and intellectual umbrage at the very ideologies that form the foundation of the state’s case. Take, for example, this exchange between Keller and Ginsburg:
Ginsburg: [...] So what was—what was the problem that the legislator was responding to that it needed to improve the facilities for women’s health?
Keller: In the Petitioner’s first lawsuit, Planned Parenthood admitted that over 210 women are admitted annually are hospitalized because of abortion complications.
Ginsburg: As compared to childbirth, many, many—much riskier procedure, is it not?
Keller: Well, the American Center for Law and Justice and Former Abortion Providers’ amicus brief dispute that. But regardless there is evidence —
Ginsburg: Is there really any dispute that childbirth —
Ginsburg: —is a much riskier procedure than earlier stage abortion?
Ginsburg draws out incredulous laughter at the fundamental and incorrect assumptions that drive this issue: that abortion is more dangerous than childbirth (it’s not), or that this entire legal wrangling is really about women (it’s not, at all). Ginsburg, Kagan and Sotomayor know exactly what they’re dealing with, and, throughout the transcripts, seem aggressively displeased with the poorly disguised paternalism that underpins Texas’s regulatory laws.
The presence of three women certainly signifies a change in the court’s approach to gender equality; without such robust voices, the patronizing quality of anti-choice rhetoric has certainly swayed justices in the past. Whether or not the vocal dissent of Ginsburg, Kagan and Sotomayor will be enough, we’ll have to wait and see.
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Image via AP.