My guess after oral argument today is that the Texas abortion case is that Kennedy will prefer remanding the case to the lower courts to deciding, so there probably won’t be five votes for striking down the Texas law (although it’s certainly possible.) At least there was a certain degree of emotional satisfaction to be derived from the merciless beatdown the Texas Solicitor General received from Justice Ginsburg and her colleagues:
Scalia’s absence was felt immediately at oral argument. Texas solicitor general Scott Keller surely wished he had Scalia there to bail him out as he lamely attempted to defend his state’s law. Justices Ruth Bader Ginsburg and Sonia Sotomayor in particular mercilessly shredded Keller’s arguments, forcefully exposing Texas’s justifications as a sham.
Justice Ginsburg went right after one of the most obvious contradictions in Texas’s justifications. When Ginsburg asked how many women would be over 100 miles from the nearest abortion clinic, Keller asserted that El Paso did not count because women in that metro area would be less than 100 miles from a clinic in Saint Teresa, New Mexico.
As Ginsburg pointed out, however, this severely undermines the argument that these clinic restrictions are about protecting women’s health, because New Mexico does not impose similar burdens on its abortion clinics. “If that’s all right for the the women in the El Paso area,” asked Ginsburg, “why isn’t it right for the rest of the women in Texas?”
In subsequent exchanges, the Democrat-appointed justices went hard after Keller’s attempt to defend the draconian restrictions as health protections. Why, asked Ginsburg, are women who elect to have pill-induced abortions required to have them in a surgical medical facility? Keller did not have a good answer. Justice Stephen Breyer asked if there was any case before the law was enacted where a woman who suffered medical complications from an abortion could not get admitted to a hospital. Keller did not have one.
The bottom line, as Justice Ginsburg later summarized it, is that the Texas statute puts very substantial burdens on women in exchange for no actual benefits. Early-stage abortions, Ginsburg noted, are “among the most safe, the least risk procedures. So what was what was the problem that the legislature was responding to that it needed to improve the facilities for women’s health?” Texas does not place similar requirements on procedures that are far more dangerous. The reason is that the law is not designed to protect the health of women, but to stop women from getting abortions.
Breyer explicitly referred to Posner’s opinion dismantling a similar Wisconsin law, which definitely warmed my heart.
With Scalia off the Court we won’t get the worst-case scenario of Roe being effectively overruled, but beyond that whether Kennedy has finally seen an abortion regulation he can’t square with Casey remains to be seen. If he votes on the merits I don’t think he would uphold the whole law, but I also think he’s likely to try to avoid the merits for the time being.