Deep Divisions Over Abortion as Justices Hear Texas Case

Some questioned whether the roughly 20 clinics that shut down after the legislation was passed did so because of the law, or other factors. “There is very little specific evidence in the record in this case with respect to why any particular clinic closed,” Justice Samuel Alito Jr. said.

Chief Justice John Roberts Jr. extended the time for argument so that advocates could address the merits of the statute as well the perceived omissions from the record in the case.

The lengthy discussion of procedural issues raised the possibility that the court will remand the case to lower courts for additional fact-finding—a result that could postpone a ruling on the merits of the law until next term, when a new member of the court might have replaced the late Justice Antonin Scalia.

The motives behind the legislation appeared to be a key issue in the case. Texas said the rules were aimed at protecting the health of women seeking abortions. But clinic advocates, citing statements by some legislators, assert that the true goal of the legislation was to shut down as many clinics as possible.

“What difference does the purpose make?” Roberts asked. He asserted that the key question was whether the law placed an undue burden on women’s right to an abortion.

The court’s three female justices—Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan—were joined by Justice Stephen Breyer in criticizing the law. “Is the slightest benefit enough to burden a million women?” Sotomayor asked at one point.

Breyer said the risks of an abortion are “roughly the same risks you have at a dentist’s office.” Kagan asserted that liposuctions are “30 times more dangerous” than abortions, yet the standards for abortions imposed by the Texas law do not apply to other procedures including liposuction.

As expected, Justice Anthony Kennedy may be the key justice, and his questioning did not tip his hand either way.

Clinic supporters say that if the law is upheld, the number of abortion facilities will drop to 10 in a vast state with more than 5 million women of childbearing age.

The composition of the court has changed since 2007, when the court in Gonzales v. Carhart upheld a federal law banning so-called “partial birth” abortions. Sotomayor and Kagan joined the court in 2009 and 2010, respectively.

Scalia, a staunch opponent of abortion rights, died Feb. 13, creating the possibility that the abortion case could result in a 4-4 tie, which would have the effect of leaving in place a ruling by the U.S. Court of Appeals for the Fifth Circuit upholding the Texas regulations.