By Sarah Ferris - 03-02-16 13:09 PM EST
The Supreme Court on Wednesday appeared split along ideological lines on its biggest abortion case since 1992, with potential swing vote Anthony Kennedy suggesting the case may be sent back to the lower courts.
Kennedy, a conservative justice who once ruled in favor of abortion access, revealed little throughout 90 minutes of arguments on whether Texas had created an “undue burden” on women with restrictions on abortion providers that opponents say have closed at least 11 clinics statewide.
But he also acknowledged that the law seemed to be affecting the types of abortions women were having in Texas. He noted the number of medical abortions in Texas has increased relative to surgical abortions — the opposite of the national trend.
“This may not be medically wise," he said, though he added that “you might say” it is a state’s decision to control those factors.
In an important sign for the future of the law, Kennedy said the court may not issue a definitive ruling, instead possibly sending the case back to lower courts.
That move, called a remand, would maintain the uncertainty around the 2013 law, which has been under legal challenge since its passage.
The case, Whole Woman’s Health v. Hellerstedt, could decide whether Texas can enforce one of the nation’s strictest abortion laws. Two dozen other states have similar restrictions in place, requiring abortion clinics to meet the standards of hospital-style surgical centers and requiring abortion doctors have admitting privileges at hospitals within 30 miles.
Only eight justices heard the case, and all four liberal justices appeared to oppose the Texas law, making it more likely the case will deadlock in a 4-4 tie.
If that happens, a lower court ruling that upheld the Texas law would stand, though it wouldn’t set a precedent nationwide.
Much of the debate Wednesday centered on the safety of the abortion procedure and whether the state’s restrictions on clinics were necessary. While liberal justices compared the procedure to a colonoscopy, Texas’s solicitor general said it was more like brain surgery.
During the first 30 minutes of the arguments, the justices argued whether they should even be considering the case.
Justice Samuel Alito aggressively questioned Stephanie Toti, the attorney representing Whole Woman’s Health, a nonprofit that operates several abortion clinics in Texas.
“What evidence is there that the closures are related?” Alito said, in his first of a series of questions to Toti as he demanded more evidence that the law was causing the clinics to close.
“Why is there not direct evidence?” he asked, interrupting her.
Toti, arguing for the first time before the Supreme Court, sounded nervous, with "ums" and “uhs" punctuating many of her sentences.
All four liberal justices dug in against Texas Solicitor General Scott Keller as he argued that the Texas law was intended to improve the safety of abortion clinics.
Justice Stephen Breyer pointed out that Texas had reported few complications from abortion before the law was passed and asked whether there would be “more women or fewer women who die because of complications from abortions” after these restrictions.
He specifically pointed out the instances of self-induced abortions that Whole Woman’s Health described in its briefs.
“Texas did have existing regulations, but increasing the standard of care is valid,” Keller said, pushing back against the liberal justices’ challenges.
The case will likely be decided in June.
The arguments took place one day after Super Tuesday, underscoring the election's impact on the makeup of the court. GOP leaders in Congress have committed to blocking any nominee by President Obama to replace the late Justice Antonin Scalia, calling instead for the next president to appoint a replacement
Politics were rarely mentioned Wednesday, though Justice Elena Kagan alluded to Texas lawmakers' anti-abortion intentions with the law.
"Why would Texas do this?" Kagan said in a mocking tone, prompting laughter in the gallery. "I'm left wondering, given the baseline of regulations ... why is it that Texas would do this?"
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