*Editor's Note: Originally posted March 4, 2016*
This blog was written by LPJ League's Ashley Gray. Follow her on twitter: @SmashleyGray
Hey Leaguers! Want to get the scoop on Wednesday’s oral arguments in Whole Woman’s Health v. Hellerstedt but don’t have time to read the 93 pages of transcriptions? Does fancy lawyer talk make you sleepy like it does us?
Never fear! LPJ League’s own resident constitutional law nerd read the transcripts for us and translated some key moments in true Lady Parts fashion. Here are some of our favorite moments from Wednesday’s oral arguments and our interpretations of them. Spoiler alert: the female justices took charge, kicked ass, and put HB2 through the ringer… there were two rallies that day, both outside and inside the court.
#1.) That moment when Justice Roberts thought clinics were just magically shutting down on their own.
CHIEF JUSTICE ROBERTS: I'm sorry. Yeah. What is the evidence in the record that the closures are related to the legislation?
Translation: How do we know that these TRAP laws were the cause of all these clinics in Texas shutting down? Maybe it was just ‘cuz the Spurs were in town.
STEPHANIE TOTI (legal counsel for the lead plaintiff, Whole Woman’s Health): The – the timing is part of the evidence, Your Honor, and the testimony of the plaintiffs about the reasons why their clinics closed. So that the plaintiffs testified that clinics closed in anticipation of enforcement in some cases, and in some cases because of actual enforcement of the requirements.
Translation: Because facts.
JUSTICE GINSBURG: Can we go on to the second piece; that is, the ambulatory surgical centers? That was not part of the last case. And your position on that is that that is a discrete claim, so it's not barred by a claim preclusion.
#2.) When Justice Alito circled back to Justice Robert’s complaint of not knowing exactly why the clinics in Texas closed and Justice Kagan stepped in to shut the whole thing down.
JUSTICE ALITO: But my point is why is there not direct evidence about particular clinics?
Translation: But do we reeeaaally know that it was HB2 that closed almost half the clinics in the entire state at relatively the same exact time?
JUSTICE GINSBURG: You said you had direct evidence for clinics and you were going to supply us with that those record citations later. That's understood you to say?
Translation: Alito, if you’d shut the fuck up for a second, she’d be able to give you the evidence you’re asking for!
TOTI: Yes. Yes, Your Honor. Absolutely. But I think what's –what's important to keep in mind here…
Translation: DEAR GOD THANK YOU FOR GIVING US RBG.
JUSTICE KAGAN: And is it right that in the two week period that the ASC requirement was in effect, that over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately; is that right? It's almost like the perfect controlled experiment as to the effect of the law, isn't it? It's like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.
Translation: Logic, guys. It’s not that hard. <yawn>
#3.) When Justice Sotomayor pointed out that TRAP laws are only targeted at abortion providers and not other medical professionals who perform much riskier procedures.
JUSTICE SOTOMAYOR: So your point, I'm taking, is that the two main health reasons show that this law was targeted at abortion only?
Translation: So this is pretty unfair, huh? These regulations are only for abortion providers?
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Translation: K, you’ve made your point.
JUSTICE SOTOMAYOR: I'm sorry. Is there any other medical condition by taking the pills that are required to be done in hospital, not as a prelude to a procedure in hospital, but an independent, you know–I know there are cancer treatments by pills now. How many of those are required to be done in front of a doctor?
Translation: #SorryNotSorry for railroading you, Chief Justice, but I’m gonna go ahead and ask another question anyway: Do other medical facilities require their patients to take their pills inside a huge, expensive surgical center with their doctor present? Cancer facilities? Anyone? ….Bueller? ….Bueller?
STEPHANIE TOTI: None, Your Honor. There there are no other medication requirements and no other outpatient procedures that are required by law to be performed in an ASC.
Translation: Nah… just the laydeez. <girl emoji>
#4.) When Mr. Keller, the Texas Solicitor General who was defending the HB2 law, told the court that women in El Paso, TX could just cross the state border and get their abortions in New Mexico and Notorious RBG was not having it.
JUSTICE GINSBURG: That's odd that you point to the New Mexico facility. New Mexico doesn't have any surgical ASC requirement, and it doesn't have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things. But send them off to Mexico–New Mexico–where they don't get it either, no admitting privileges, no ASC. And that's perfectly all right. Well, if that's all right for the women in the El Paso area, why isn't it right for the rest of the women in Texas?
Translation: So what you’re telling me is that this law, requiring abortion clinics to turn themselves into ambulatory surgical centers, is supposed to make abortion safer for women… And in the same breath you’re also telling us that this law, which is closing all of these Texas clinics, isn’t *that* bad because women in areas where no abortion providers are left can just go to another state to get their abortion procedures. But those states don’t have these same “safety” requirements. So according to your logic, you think it’s okay to send Texas women to another state that doesn’t have the same safety regulations that you’re calling for. So this law isn’t actually necessary at all, is it? **GOTCHA, BITCH!** <drops mic>
#5.) When Justice Sotomayor and Justice Ginsburg [resident SCOTUS badasses] challenged Mr. Keller on the whole point of HB2 and why it exists.
JUSTICE SOTOMAYOR: I'm not talking about the doctrine. I'm talking about the question I asked, which is, according to you, the slightest health improvement is enough to impose on hundreds of thousands of women even assuming I accept your argument, which I don't, necessarily, because it's being challenged but the slightest benefit is enough to burden the lives of a million women. That's your point?
Translation: You think the tiniest possible health benefit that may come out of this law is worth the huge burden it will place on a million women in Texas? Are. You. Fucking. Kidding. Me?!
JUSTICE GINSBURG: What is the benefit of the medical, the two pills that you take, what is the benefit of having an ambulatory surgical center to take two pills when there's no surgical procedure at all involved? …And, just it's, I can't imagine. What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?
Translation: I’m no doctor, but I am a human with a brain and this is total utter bullshit, bro. You don’t need to take abortion pills at a hospital, and your poor mansplaining of women’s health is rendering me almost speechless.
#6.) When Justice Kennedy, who is poised to be the potential swing vote in this case, had this amazing moment of clarity while confronting Mr. Keller (who also happens to be Kennedy’s former clerk…AWKWARD!)
JUSTICE KENNEDY: 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.
Translation: This law seems to hurt women. HB2 is forcing women, who could just take the abortion pill, to have an invasive surgical procedure instead… not cool, dude.
#7.) That moment when Justice Breyer asked for any evidence that showed that doctors having admitting privileges at a nearby hospital would have made a difference when a patient experienced complications.
JUSTICE BREYER: Okay. So I want to know, go back in time to the period before the new law was passed, where in the record will I find evidence of women who had complications, who could not get to a hospital, even though there was a working arrangement for admission, but now they could get to a hospital because the doctor himself has to have admitting privileges? Which were the women? On what page does it tell me their names, what the complications were, and why that happened?
Translation: Give me some evidence that shows how requiring an abortion provider to have admitting privileges at a nearby hospital makes any sort of difference for a patient’s quality of care if they should experience complications from the procedure.
KELLER: Justice Breyer, that is not in the record.
Translation: :::crickets chirping:::
JUSTICE BREYER: So what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation, though perhaps there is one, but not in Texas.
Translation: Why is Texas heavily regulating abortion clinics if abortion seems to be a pretty safe procedure?
#8.) When RBG gave the ultimate fact smackdown in regards to early stage abortion procedures vs. childbirth and the health risks involved.
JUSTICE GINSBURG: But what is the legitimate interest in protecting their health? What evidence is there that under the prior law, the prior law was not sufficiently protective of the women's health? As I understand it, this is one of the lowest risk procedures, and you give a horrible example from Pennsylvania, but absolutely nothing from Texas. As far as we know, this is among the most safe, the least risk procedures, an early stage abortion. So what was what was the problem that the legislature was responding to that it needed to improve the facilities for women's health? As compared to childbirth, many, many– much riskier procedure, is it not?
….Is there really any dispute that childbirth (Laughter.) is a much riskier procedure than an early stage abortion?
Translation: So let’s get this straight… You can’t give us any evidence that this law was even responding to any sort of problem with early-stage abortion procedures in the first place. You cited an unlicenced back-alley abortion provider (Kermit Gosnell) from Pennsylvania that has nothing to do with this law or the situation in Texas. First trimester abortions are among the safest medical procedures available to women, not to mention much safer than childbirth itself. HAHAHAHA what a joke.
#9.) And when Justice Sotomayor perfectly illustrated how ridiculous HB2 is and also how unfair it is to abortion providers.
JUSTICE SOTOMAYOR: I don't mean to negate that one should try to avoid injury to anyone, and don't take my question as that, but there are people who die from complications from aspirin. May be unusual, but there's a certain percentage that do that. Yet, we don't require that people take aspirins in ASC centers or in hospitals.
Translation: Of course we don’t want anyone to be harmed from having a medical procedure, and it happens on the rare occasion, but that doesn’t mean we have to overhaul our entire way of doing things because there’s a less than 1% chance of something going wrong. People have died from taking aspirin, but we just have a little warning printed on the bottle, we don’t require people to take aspirin in the presence of their doctor. Why should we do that with a first trimester abortion?
#10.) Justice Breyer weighing the benefit and the burden of HB2.
JUSTICE BREYER: …I mean, you read the briefs, and you've read the same articles I have. And of course the argument is if you lead to self-induced abortion, you will find many more women dying. So if the concern is this tiny risk of dying through a complication in a clinic, is this a remedy that will in fact achieve the legislature's health saving purpose?
Translation: When clinics close, women start trying to self-induce abortions on their own and many end up dying from this. You’re claiming that this law is to improve the health and safety for women when, in reality, it’s actually doing the opposite. So is this really about helping women? Or is it about closing clinics and cutting off access to abortion?
It was an epic showdown at SCOTUS on Wednesday. It was difficult to narrow it down, but these were just some of our favorite parts of the Whole Woman’s Health v. Hellerstedt oral arguments. If you’d like to take a stab at it, you can read the entire transcripts here. All eyes are on Justice Kennedy now, who could very well decide the fate of abortion access in the United States. If they don’t kick this case back to the lower courts for more information, we are confident that the court will stand on the right side of history.
This blog was written by LPJ League's Ashley Gray. Follow her on twitter: @SmashleyGray