The courtroom battle over HB 2 centers on a legal concept — the "undue burden" standard established during the Supreme Court's last big abortion case, Planned Parenthood v. Case. Since Casey, states have had the authority to place restrictions on women's abortion rights, even burdensome restrictions, provided the burden created is not something a majority of Supreme Court justices consider undue. So, mandating that abortions occur within a certain window after conception — HB 2 limits abortions to the first 20 weeks of pregnancy — is OK, but requiring married women seeking abortions to inform their husbands that they're doing so, something the law that spawned Casey required, is not.
As his predecessors have in lower courts, Texas Solicitor General Scott Keller told the eight sitting Supreme Court justices Wednesday that any burden created by HB 2's requirement that all healthcare facilities providing abortion meet ambulatory surgical center standards — that they essentially be mini-hospitals with wide hallways, special ventilation systems and specially outfitted custodial closets — is not only undue, but is a good thing for women's health.
For his efforts, Keller was picked apart by the court's liberal justices, especially over what HB 2 does to medical abortion. Medical abortion, which can only happen very early in pregnancy, allows a woman to take two pills rather than have surgery. Because Texas law requires women to take the pills in front of a doctor, any woman seeking a medical abortion will, should the Supreme Court side with the state, have to do so at one of the state's eight clinics that meet the mini-hospital requirements. In many cases, that will mean women have to drive hundreds of miles to take the first pill, then either stay in a hotel or make the same trip again to take the second pill.
"What is the benefit of having an ambulatory surgical center to take two pills when there's no surgical procedure at all involved?" Justice Ruth Bader Ginsburg asked Keller.
Keller replied that the risk of complication for medical abortions is higher than that for surgical abortion, so the need for them to take place in a mini-hospital is high. Ginsburg then peppered the solicitor with questions about why the complication rate mattered when those complications, in the case of medical abortion especially, were more likely to happen at home.
When the Observer talked to Joe Pojman, the executive director of the Texas Alliance for Life, last week, he was eager to point out that HB 2, even if it where to become fully effective, will still leave clinics in each of Texas' major metropolitan areas, save El Paso. Wednesday, Keller made the same argument, pointing to the majority of Texas women who would live within 100 miles of an ambulatory surgical center that provides abortion.
Justice Elena Kagan pointed Keller to the more than 750,000 women who will live more than 200 miles from a clinic that can legally provide abortion if Keller wins Texas' case. She criticized the increase in that number that's occurred since HB 2 was passed in 2013.
"Now, that's as compared to 2012, where fewer than 100,000 lived over 150 miles, and only 10,000 lived more than 200 miles away. So we're going from, like, 10,000 to three-quarters of a million living more than 200 miles away," Kagan said.
Justice Anthony Kennedy, the likely swing vote on the court between a 4-4 tie that would see HB 2 upheld but not set as precedent nationwide and a 5-3 decision against the state that would allow the 19 Texas clinics to stay open, seemed dismayed that HB 2's requirements might cause more women to seek surgical rather than medical abortion. Still, he suggested the potential of returning the case to a lower court in the hope both sides would present more evidence of whether or not Texas' current ambulatory surgical centers could handle the increased workload they'd be faced with were they the only clinics in the state. If the case is remanded that would allow it to potentially be put off until the court seats a ninth justice to replace Justice Antonin Scalia, who died in February during a hunting trip to Texas.For those outside the hearing, and people like Texas Attorney General Ken Paxton and Lieutenant Governor Dan Patrick, the courtroom arguments are side issues. The purple bedecked pro-choice forces on the Supreme Court's steps want abortion to be available, as their signs put it, "on demand." They want anyone in Texas with a uterus — Wednesday's rally was trans-inclusive — to be able to get an abortion without driving too far and without a waiting period. They want more than HB 2's ambulatory surgical center provision being struck down, but they view that as a start.
"We’re fighting a harsh, cruel law that does nothing to promote women’s health. Today we stood up for the woman from Lubbock who will drive over 250 miles one way to end her pregnancy. We stood up for the mom from Laredo who will look through her cabinets, hoping to find something that will end her own pregnancy because she can’t afford the travel, the child care or the multiple days off work that have become part of getting an abortion in Texas," Amy Hagstrom Miller, the CEO of Whole Women's Health, the plaintiff in Wednesday's case, said to raucous applause. For the anti-choice groups trying to shout Miller down, saving HB 2 is not about promoting the safety of women seeking abortion. It's about limiting access to abortion in the state. Paxton admitted that his goal is to end legal abortion in the state at a Texas Senate hearing last July. Patrick has called HB 2 a "small, vital step" on the road to banning abortion in Texas.
Wednesday, anti-choice protesters carried their usual dismembered fetus signs, called abortion murder and made it clear that they agreed with Patrick.
"We are the pro-life generation, and we are here to stand for life," U.S. House Speaker Paul Ryan said over the "stop the sham" chant being yelled by pro-choice ralliers. If the case is not sent back to a lower court, HB 2's final fate is expected to be determined by the Supreme Court early this summer.