Some Very Preliminary Thoughts on Whole Women’s Health v. Hellerstedt (Texas Abortion Case) Argument

By I. Glenn Cohen

It is always dangerous to try to glean too much from oral argument, and I have only read the transcript (no recording yet) of today’s argument in Whole Women’s Health v. Hellerstedt, and finally I filed a brief in this case on the side of the law’s challengers so I may be suffering from some motivated reasoning. But with all those caveats, here goes:

Justice Scalia’s passing seems to have radically transformed this oral argument and likely this case. The 3 firm anti-abortion votes on the court (Alito and Roberts from their questions and earlier positions, Thomas we can infer from his earlier positions) left over after Justice Scalia’s passing seemed very much to be playing a defensive game. Many of their questions were aimed at convincing others on the Court (especially Justice Kennedy, the swing voter on these matters) to remand the case back to the lower court, much more so than focusing on giving Texas an outright win.

Appellant’s Counsel Toti’s argument barely was able to get to the merits questions in the case. Instead Justices Roberts, Alito, sometimes joined by Kennedy in these questions, repeatedly asked about evidence in the record on when various clinics closed, re-opened, and what evidence there was for the reason behind it. Toti tried to make use of the timing to her advantage as did the Justices more supportive of her side, but there was a lot of push on why this element of the record was not better developed. She was also repeatedly asked questions regarding the evidence on the capacity of remaining clinics to absorb extra patients needing abortions and what was developed in the record.

The same was true to a lesser extent in Appellee’s Counsel Keller’s argument. Justice Kennedy in particular focused on a line of questioning at page 44 of the argument that may also be significant in terms of remanding the case without resolving it:

“But I thought an underlying theme, or at least an underlying factual demonstration, is that this law has really increased the number of surgical procedures as opposed to medical procedures, and that this may not be medically wise?”

Keller was also repeatedly pressed on why Texas’ new requirements for facilities and admitting privileges had not been imposed on other procedures, like colonoscopies, which were known to be more dangerous. In the rebuttal time of Toti this led to an interesting exchange (page 76 of the transcript, indeed the last question of the argument) where Justice Alito pressed on whether district court judges were qualified to assess which procedures were more dangerous and by how much and whether that justified the restrictions Texas put in place. Toti emphatically explained why the answer is yes.

All this focus on the record evidence, remand, and district court competency to weigh these things seems significant. From the argument (caveats above) it seems that the Court’s 3 conservative votes’ best case scenario is now a draw and not a win. That was self-evident even before the argument, with Scalia’s passing the court would at best for their wing vote 4-4 and affirm by an evenly divided court without making any new law (leaving the Texas opinion in place). After the oral argument that seems less likely to me. It may be that for reasons of institutional confidence/prestige, JChief ustice Roberts wants to steer the court away from a 4-4 split towards a 5-3 or better vote to remand the case for more factual development and then re-hear it as needed once the court is back to its 9 members.

In terms of the actual merits legal questions raised in the case there was some tripping over the awkward relationship between facial and as-applied challenges (including res judicata issues). But the main merits question, pressed especially by Chief Justice Roberts, pertained to the failure of the Appellant to have preserved their objection that the law could not be sustained under rational basis review. Without the rational basis question before the Court, Roberts repeatedly tried to suggest the reason Texas had for putting the law in place was irrelevant for undue burden analysis. That position met heavy resistance from the Court’s more liberal quartet, who thought that purpose was essential to evaluating undue burden, but also it seemed to draw hints of skepticism from Justice Kennedy.

To me the overwhelming take-away from the argument was two-fold: (1) This was a perfect example as to why one needs to know the record cold, since so much of this case turned on the record. (2) A much larger share of the argument was spent on potential reasons to remand the case and the state of the record rather than the merits, suggesting such a remand is likely. But, as always, one has to be careful about reading oral argument tea leaves.

To close with some levity: Massachusetts General Hospital (MGH) should hire Justice Elena Kagan as a spokesperson. In her comments on pages 50-51 of the transcript she repeatedly holds it up as the emblem of all that is good in medicine, and presses on whether the state could make all abortion facilities (but none other) come up to the standard of MGH, which she implies would be very lofty indeed. This gives new meaning to the old joke that MGH stands for “Man’s Greatest Hospital” at least in the minds of its doctors.