How far may states go to make abortion a constitutional right that is practically impossible to exercise?

That was the critical question in today’s long-awaited oral argument in Whole Woman’s Health v. Hellerstedt. According to Texas, a state may single out abortion for any health regulation it wants so long as access to abortion is theoretically available. In Texas’s view, the state could constitutionally require that abortions—and no other medical procedures—be performed only in hospitals that meet the standards of the highest hospital practices in the nation, such as Harvard’s Massachusetts General Hospital. Texas’s view of the law—which would allow states to subject the abortion right to a death by a thousand cuts—came under intense scrutiny during today’s argument. By the end of the morning, it seemed unlikely that five justices would sign on to the state’s effort to hollow out the right to choose an abortion—a fundamental right reaffirmed by the Supreme Court in a long line of precedents over the last 40 years. 

Today’s argument was the first blockbuster case to be heard by the Court since the death of Justice Antonin Scalia. Without Scalia, long known for his reputation as an aggressive questioner, the Court’s three women justices—Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—dominated the proceedings. Through their questioning, they repeatedly made the point that Texas’s pair of onerous abortion regulations—which require physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic and require abortion clinics to meet the standards for standalone surgical centers—would substantially limit a woman’s right to obtain an abortion, without any medical or health justification. 

Sotomayor pressed Texas Solicitor General Scott Keller to justify the notion that the courts should have “no role” in judging “whether there’s really a health benefit” to these provisions, since according to the state’s brief, “the slightest benefit is enough to burden the lives of a million women.” Kagan, too, asked if there were any meaningful limits on the state’s authority to regulate abortion based on an asserted interest in protecting women’s health, or whether the legislature “can … say anything.”  

Kagan asked Keller if the state could protect women’s health by requiring “all … abortion facilities conform to the standards” of “the ten great hospitals in the country.” Keller’s view was that “abortion can be treated differently” and that states could single out abortion for special regulation, even if it did not impose similar regulations on other riskier medical procedures. But Keller could never satisfactorily explain why Texas would impose all manner of burdensome regulations on abortion, while leaving what Kagan called “much more risky medical work” exempt. The answer—as Solicitor General Don Verrilli suggested—was that the state was erecting burdens to make abortion practically impossible to obtain, leaving a “right” that “only exists in theory and not in fact.” As the argument showed, what Texas wants is to gut the Constitution’s protection of the full scope of liberty, dignity, and equality for all, which ensure that, as Justice Ginsburg put it, “a woman has a fundamental right to make this choice for herself.” 

The critical vote, as everyone in the courtroom recognized, belonged to Justice Anthony Kennedy. While it is difficult to determine exactly how Kennedy will rule, his questioning suggested that he was likely to come down on the side of limiting the power of states to use women’s health as a pretext to shut down abortion clinics. During the argument, Kennedy seemed to recognize that courts have a critical role to play in ensuring that state health regulations, in fact, serve women’s health. Importantly, at no time during this morning’s argument did Kennedy’s questions seem to accept the state’s defense of the burdens imposed by Texas’s regulations.

In one of the key exchanges of the argument, Kennedy told the Texas solicitor general that the “undue-burden test” is “weighted against what the state’s interest is,” and suggested that it was wrong to say that “we don’t look at the state’s interest.” The Fifth Circuit Court of Appeals gave a cramped reading to the Court’s precedents, insisting that courts should not referee disputes about whether state regulation serves a medical basis. Kennedy could vote to reverse the lower court’s decision upholding the Texas regulations on this basis alone.

Kennedy also noted that the requirement that abortion clinics operate as stand-alone surgical centers applied to medical abortions, which involve taking pills. Earlier in the argument, Justice Ginsburg asked, “What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?” Kennedy seemed to agree, pointing out that the broad sweep of the state’s regulation “may not be medically wise.” 

The Court also dived into whether the plaintiffs had proven that the state regulations imposed a substantial obstacle on women. Stephanie Toti of the Center for Reproductive Rights, representing those challenging the Texas regulations, began her argument by insisting that they are “unnecessary health regulations that create substantial obstacles to abortion access,” but then faced a barrage of questions from Justice Samuel Alito, Chief Justice John Roberts, and others. Alito asked question after question about the state of the record, claiming that “there is very little specific evidence in the record … with respect to why any particular clinic closed.” Kennedy joined in as well, asking whether it would be appropriate to send the case back for more fact-finding on whether existing abortion clinics could meet demand state-wide. 

Ultimately, it seems unlikely that the case will be decided narrowly based simply on the record, which would leave women in other states at the mercy of state legislatures seeking to manipulate the abortion right out of existence. Further, as Justice Kagan emphasized, the record in the case offers a “perfect controlled experiment as to the effects of the law”—twelve of the clinics closed when Texas moved to enforce the law reopened when the Supreme Court stepped in to block the law’s enforcement pending its final ruling. The justices will be hard-pressed to avoid deciding the huge issues at the heart of this case.

More than 20 years ago, in Planned Parenthood v. Casey, the joint opinion, signed by Justices Kennedy, David Souter, and Sandra Day O’Connor, reaffirmed constitutional protection for the right to choose abortion and crafted the undue burden standard to give “real substance” to women’s liberty, equality, and dignity. Casey explained that “unnecessary health regulations” that substantially burden a woman’s fundamental right are unconstitutional. If Justice Kennedy follows what he’s written, he should vote to put an end to laws, like those enacted by Texas, designed to make an end-run around the Constitution.