By Gloria J. Browne-Marshall
A black wool crepe drape hung over the chair of the late Justice Antonin Scalia.
The Supreme Court must decide if a Texas law places an unconstitutional burden on a woman’s right to an abortion.
Without Justice Scalia, this case may have a very different outcome.
Texas law House Bill 2 regulates medical facilities and the physicians performing abortions.
In Whole Woman’s Health v. Hellerstadt, an abortion clinic challenged the law as a burden on a woman’s right to choose to have an abortion.
House Bill 2 requires changes in facilities, medical care, and physician admission privileges.
Attorney Stephanie Toti, representing Whole Woman’s Health, argued that House Bill 2 (HB2) was developed solely to make it more difficult to provide and obtain abortions in Texas. Abortions became legal in 1973, with the U.S. Supreme Court decision in the Texas case of Roe v. Wade. In 1992, Planned Parenthood v. Casey Access allowed States to place limits on abortions for safety reasons.
HB 2 requires medical clinics performing abortion to become ambulatory surgical centers (ASC) and physicians must have admitting privileges at local hospitals.
The law also requires an elevator, registered nurse with CPR training, and retro-fitting the clinic facility to widen doors and put in ramps. Scott Keller, the Texas solicitor general, argues HB 2 was enacted to safeguard women’s health.
However, meeting the ASC requirements is an expensive process that is said to have resulted in the “closure of nearly 75 percent of the clinics in Texas since 2013, forcing some women to drive up to 300 miles one-way to obtain a safe and legal abortion care,” according to the Woman’s Whole Health Center website.
Under HB2, a medically induced abortion, which requires the taking of two pills, forced women to go to a hospital to take the pills instead of a clinic.
This means two separate visits to take each pill.
Justice Stephen Breyer noted that those two days at a hospital meant traveling 150 miles, maybe more, staying overnight, time from work, hotel expenses, and perhaps childcare.
Whether abortion clinics closed due to HB2 was a point of heated contention in Court as the Justices used their questions directed at attorneys to counter the views of their colleagues on the bench. Justice Ruth Bader Ginsburg noted that childbirth has more complications Gloria J. Browne-Marshall than abortions.
Justice Sonia Sotomayor queried why there was a need for HB2 when the American Medical Association does not require such increased medical or facility standards, demanding of Keller, had the legislature “targeted at abortion?”
Justices Elena Kagan and Sotomayor questioned the need for HB 2 when there are medical procedures with greater complications in need of legislation.
Forcing women to take a pill in a hospital as opposed to a clinic such as Woman’s Whole Health could be viewed as punitive instead of a necessary safeguard.
Under House Bill 2, physicians performing abortions must have admitting privileges at local hospitals. Few abortion doctors have been granted those privileges.
Prior to the law, physicians had working relationships allowing admission of their patients if complications occurred.
Justice Alito agreed and tried to fill the conservative void left by Justice Scalia, he questioned whether attorney Toti could provide any direct evidence that abortion clinics closed or women were denied abortions due to HB 2.
Keller argued that the Texas legislature has the power to act to make abortion safer, especially after seeing news stories about partial birth abortions.
Justice Samuel Alito reminded the Court that Texas inspectors found some abortion clinics in disrepair, holes in the floor, and unsterilized equipment. Abortion complications have occurred.
However, under questioning by Justice Sotomayor, the Texas solicitor revealed that physicians performing liposuction and colonoscopy procedures, which carry a higher risk to patients, are not required to have admitting privileges at local hospitals or renovate their facilities.
“The admitting privileges requirement, which is partially in effect [now] has been responsible for the closure of nearly half of all abortion facilities in Texas to date,” said attorney Toti.
According to U.S. Solicitor General Donald Verrilli, HB 2 is an undue burden, excessive and unwarranted compared to the need the law was created to address.
Solicitor Verrilli argued as an amicus, or friend of the Court. Women have a constitutional right to an abortion; HB 2 means “the right exists in theory but not in fact,” said Verrilli.
With only eight justices, if there is 4-4 outcome, the appellate court ruling against Women’s Whole Health will stand. The Court will decide this case by late June.
Gloria J. Browne-Marshall is a legal correspondent for AANIC (African-American News & Information Consortium) and a professor of constitutional law at John Jay College in New York City.
Her forthcoming book is titled “The Voting Rights War.”