Justice Kennedy appears skeptical of Texas abortion limits

[FuzzyLumpkins]

A Texas law strictly regulating abortion clinics appears to be in danger of being struck down, judging by exchanges Wednesday during oral arguments at the Supreme Court.
Justice Anthony Kennedy — the likely swing vote in Whole Woman's Health v. erstedt, the most significant abortion case to reach the court in a generation — questioned whether the burdens imposed by the law might be uncons utional because they outweigh medical benefits. The state law makes abortion clinics meet surgical center requirements and requires doctors performing abortions to have admitting privileges at a nearby hospitals.

The case addresses how far states can go in regulating abortion — and it comes after several years of heightened state restrictions. It unfolds in the middle of a volatile presidential campaign where abortion rights and Planned Parenthood funding have emerged as central issues.

In the oral arguments that lasted more than the scheduled hour, a lawyer representing Texas said the state had wide la ude to impose regulations aimed at protecting women's health, but Kennedy appeared to argue that the purported benefits had to be assessed by the courts.

"Doesn't that show the undue burden test is weighed against what the state's interest is?" asked Kennedy, who was one of the authors of a landmark 1992 decision in Planned Parenthood vs Casey that said states could not impose an "undue burden" on a woman seeking to terminate a pregnancy.

Texas officials have said these rules were enacted specifically to protect women's health. Many leading medical organizations including the main national obstetrics and gynecology groups say they are not medically necessary.

But Kennedy's stance was far from clear based on his questions. At one point he raised the prospect of sending the case back to a lower court for more evidence of the link between the law and clinic closures across Texas.

“Would it be A) appropriate and B) helpful for this court to remand [the case] for further findings on clinic capacity?" Kennedy asked.

Returning the case to a lower court could allow both sides to submit more evidence about the law’s impact. But it seems unlikely the liberal justices would allow that without keeping in place a temporary stay that has blocked some of the law from taking effect.

Chief Justice John Roberts and Justice Samuel Alito also wanted to see evidence on whether the law had actually limited women's access to abortion. They said the record did not establish that any clinic closures were directly related to the new law, and if so which parts of the legislation were responsible. They also appeared to find a lack of evidence that clinics remaining open couldn’t take up the slack.


Read more: http://www.politico.com/story/2016/0...#ixzz41nCJXRU4

[boutons_deux]

I'll take 5-3.

TX Repugs' main argument is a huge IN LIE, that TX Repugs are protecting (poor black, brown, even white) women's health by closing health clinics, stopping STD testing, stopping free contraception, stopping perinatal care, saying having a baby is safer than aborting (the reverse is overwhelmingly, like 30x, true).

If all four Repug SCOTUS assholes buy the TX Repug lie to let the lower court ruling remain, they're coming down on the misogynist Repug side in Repug War on Women, which of course would be the expected vote.

[FromWayDowntown]

Apparently, Justice Ginsberg chopped up Scott Keller with a line of questioning about the State's positions with respect to the availability of clinics in New Mexico, which aren't subject to the Texas medical requirements:

Ginsburg asked Keller how many women would live 100 miles or more from a clinic if the Texas law went into effect. About 25 percent, he responded—but that didn’t include the clinic in Santa Teresa, New Mexico, just over the border from El Paso. The existence of this clinic featured heavily in the 5th Circuit’s decision to uphold the Texas statute; it asserted that the law did not impose on “undue burden” on abortion-seeking El Paso women, because they could simply cross state lines for the procedure.

“That’s odd that you point to the New Mexico facility,” Ginsburg said, in a clear and firm voice. New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would—standards which, Texas claims, are absolutely critical to protect women.

“So if your argument is right,” Ginsburg continued, “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 New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right.”

“Well,” Ginsburg concluded, with just a hint of pique in her voice, “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?”

http://www.slate.com/blogs/the_slate...uments_in.html

It's an odd position for the State -- on the one hand, it insists that these new requirements in offering these services are essential to protecting the health of women; on the other, it says that clinics that don't meet those requirements are a suitable alternative for women who seek these services.

The latter point basically an admission of the completely obvious fact that the laws aren't really much about a need to protect the health of women who seek these services and are very much about making it substantially more difficult for women to get those services.

[FromWayDowntown]

The remand option is the hail mary for the court's conservatives because it would avoid addressing this type of law on its cons utional merits for long enough to allow Justice Scalia's successor to be appointed and seated to deal with the case once it comes back to SCOTUS. But that ploy depends upon convincing Kennedy to join them right now, which might prove difficult.

[boutons_deux]

It's an odd position

... odd? only if you're politically correct.

IT'S A ING LIE

[FuzzyLumpkins]

The remand option is the hail mary for the court's conservatives because it would avoid addressing this type of law on its cons utional merits for long enough to allow Justice Scalia's successor to be appointed and seated to deal with the case once it comes back to SCOTUS. But that ploy depends upon convincing Kennedy to join them right now, which might prove difficult.

I think it might end up worse than 5-3 if Alito or Roberts gets the evidence they're ask for. Kennedy didn't seem compelled in the slightest by the Texas AG office's argument.