Icosian Reflections

…a tendency to systematize and a keen sense

that we live in a broken world.

Oral Arguments from Whole Women's Health v. Hellerstedt

For some reason, I decided to read today's oral arguments to Whole Women's Health v. Hellerstedt today, at Leah Libresco's recommendation.

...what am I talking about? I read through all 90-whatever pages just to listen to Sonia Sotomayor, Stephen Breyer, and the Notorious R.B.G. mercilessly sass the respondents from Texas. Select quotes:

JUSTICE SOTOMAYOR: Can I walk through the burden a moment? There's two types of early abortion at -- at play here. The medical abortion, that doesn't involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?

MS. TOTI: Under Texas law, she must take them at the facility, but -- but that is otherwise correct.

JUSTICE SOTOMAYOR: I'm sorry. What? She has to come back two separate days to take them?

MS. TOTI: That's correct, yes.

JUSTICE SOTOMAYOR: All right. So now, from when she could take it at home, it's -- now she has to travel 200 miles or pay for a hotel to get those two days of treatment?

MS. TOTI: That's correct, Your Honor.

JUSTICE SOTOMAYOR: All right. Let me ask you something about that two-­day -- wait, okay, or -- or that travel time. How many other States and how many other recognized medical people have testified or shown that there is any benefit from taking pills at the facility as opposed to taking the pills at home, as was the case?

MS. TOTI: There -- there is ­­ there's absolutely no testimony in -- in the record and -- and no evidence, you know, in -- in any of the amicus briefs that there is a medical benefit to having a medication abortion at a -- a multi-million-­dollar surgical facility. The American Medical Association and every other mainstream leading medical association to consider these requirements has -- has concluded that they are not medically justified for a variety of reasons, including that they impose these onerous burdens on medical abortion, which is the earliest form of abortion, and that these burdens are also imposed on early surgical abortion, procedures prior to 16 weeks. And as a result, women are going to be delayed later in pregnancy. And there is evidence in the record that following implementation of the admitting-privileges requirement, in the six-month period following, there was an increase in both the number and the proportion of abortions being performed in the second trimester.

So by delaying women's access to abortion, these requirements are actually increasing the risks that women face.

JUSTICE SOTOMAYOR: If the Chief may permit me to finish my two-­part question?


JUSTICE SOTOMAYOR: The second is the D&C, the dilation and ­­ what's it called? Dilation and---

MS. TOTI: Curettage.

JUSTICE SOTOMAYOR: ­­---curettage. What is the risk factor for a D&C related to abortion and a non-abortion D&C? D&Cs are performed in offices for lots of other conditions besides abortion. Is there any evidence in the record that shows that there is any medical difference in the two -- in the -- in the procedures that would necessitate an abortion being in an ASC or not, or are abortions more risky than the regular D&C?

MS. TOTI: No, Your Honor. The evidence in the record shows that the procedures are virtually identical, particularly when D&C is performed to complete a spontaneous miscarriage. So when a woman miscarries and then follows up with her doctor, the doctor will typically perform a D&C. And that's -- that's virtually identical to an abortion, but it's not subject to the -- the requirements of HB2.

JUSTICE SOTOMAYOR: So your point, I'm taking, is that the two main health reasons show that this law was targeted at abortion only?

MS. TOTI: That's absolutely correct. Yes, Your Honor.

JUSTICE SOTOMAYOR: Is there any other --

CHIEF JUSTICE ROBERTS: Thank you, counsel.


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?

MS. TOTI: None, Your Honor. There -- there are -- are no other medication requirements and no other outpatient procedures that are required by law to be performed in an ASC.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

(pp. 20-24)

[SOLICITOR] GENERAL VERRILLI: With respect to closures, here's where I think the record will show you taking the ASC requirement first. The 13 ­­ there's a stipulation, JA 183, that all -- all clinics that weren't already closed as a result of the admitting­privilege requirement would -- would not be able to meet the ASC requirements; and therefore, could not ­­ would have to cease operations. Justice Kagan noted they did cease operation during the period in which the law was in State. There's evidence in the record with respect to the seven clinics that are operated by Whole Woman's Health that they -- that it was physically impossible to meet the ASC construction requirements because it couldn't fit on the real estate footprint that they had; they couldn't meet them. There's expert testimony in the record from Dr. Layne-Farrar, the economist, that the cost of retrofitting these clinics to meet the requirements would be between 1.6 and 2.3 million dollars, which would be prohibitive; that the cost of building a new facility would be at least 3.5 million dollars, which would be prohibitive; and that the additional operating cost of an ASC would be between 600,00 and a million dollars a year more. So I think with respect to those, there's ample evidence.


Now, with respect to capacity, I really think this is key, because I do think this is the locus of the substantial obstacle problem here. With respect to capacity, before this law took -- took effect, there were approximately 65 to 70,000 abortions a year annually. The ASC clinics that will be able to remain open -- the ASC facilities that will be able to remain open performed about 14,000 a year. That's what the record tells you. It's Dr. Grossman's expert testimony. It's in the JA from pages 225 to 259.

JUSTICE KENNEDY: About 20 percent.

GENERAL VERRILLI: 20 percent. So they'd have to increase four- or five-fold in a very short period of time with the -- against the backdrop of having to meet the problems that the admitting-privileges requirement causes.

(pp. 27-30)

JUSTICE BREYER: And you asked to put in this evidence, and then the court said no, we will not let you put in the evidence?

MR. KELLER: We didn't put in the evidence because Petitioners bore the burden---

JUSTICE BREYER: I asked, did you ask to put in this evidence?


JUSTICE BREYER: No. Thank you very much. Okay.

I'd like to go back to the -- the question that Justice Ginsburg was asking, which is about what is the benefit of this procedure. There are two laws. I am focusing on the first law. The first law says that a doctor at the abortion clinic must have admitting privileges in a hospital 30 miles within that -- nearby, right?

MR. KELLER: Correct.

JUSTICE BREYER: Okay. Prior to that law, the law was that the clinic had to have a working arrangement to transfer such a patient, correct? I'm just reading it from this.

MR. KELLER: That's correct.

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?

MR. KELLER: Justice Breyer, that is not in the record.


MR. KELLER: What I'm---

JUSTICE BREYER: ---Judge Posner then seems to be correct where he says he could find in the entire nation, in his opinion, only one arguable example of such a thing, and he's not certain that even that one is correct.

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.


(pp. 46-48)

Also, I promised you some Ginsberg sass, so here you go:

MR. KELLER: In Petitioner's first lawsuit, Planned Parenthood admitted that over 210 women annually are hospitalized because of abortion complications. Here at JA 266---

JUSTICE GINSBURG: As compared to childbirth, many, many -- much riskier procedure, is it not?

MR. KELLER: Well, the American Center for Law and Justice and Former Abortion Providers' amicus brief dispute that. But regardless, there is evidence---

JUSTICE GINSBURG: Is there really any dispute that childbirth---


JUSTICE GINSBURG: ---is a much riskier procedure than an early stage abortion?


JUSTICE SOTOMAYOR: What's the percentage of 210 from 70,000? My math is pretty horrible. It's pretty small.

MR. KELLER: And -- and the statistic at JA 266 is it is lower than 1 percent. However, when there are two to three women---

JUSTICE SOTOMAYOR: I don't mean to -- to negate that one should try to avoid injury to anyone, and -- 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.

(pp. 53-55)

edit: This excellent line of questioning from Ginsberg has also been making the rounds, so I figure I'll quote it here.

JUSTICE GINSBURG: Well, how many women are located over 100 miles from the nearest clinic?

MR. KELLER: Justice Ginsburg, JA 242 provides that 25 percent of Texas women of reproductive age are not within 100 miles of an ASC. But that would not include McAllen that got as-applied relief, and it would not include El Paso, where the Santa Teresa, New Mexico facility is.


JUSTICE GINSBURG: That's -- 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 -- 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 -- the women in the El Paso area, why isn't it right for the rest of the women in Texas?

MR. KELLER: The policy set by Texas is that the standard of care for abortion clinics should rise to the level of ASCs for clinics, and admitting privileges for doctors. Texas obviously can't tell New Mexico how to regulate, but the substantial obstacle inquiry examines whether there is the ability to make the ultimate decision or elect the procedure. And when there's---

JUSTICE GINSBURG: Then why should it count those clinics?

(pp. 36-38)


Okay, that was fun. Now for a few meta-level thoughts on clever trickiness in governance:

Say, for the sake of argument, that [X] is bad, and that the government should restrict access to [X], but instead the SCOTUS finds that governments should not restrict [X]. Do you:

  1. Take advantage of any possible loopholes in the legal dictum to pass laws that have the effect of decreasing the number of [X] that are available in practice?
  2. Remain convinced that [X] is bad, and that the government should restrict access to [X], but that, if the people of the United States, as represented by their Constitutional government, disagree with you, you will not try to go behind their backs to press the issue with clever tricks?

This whole business of trying to end-run the SCOTUS with laws that hold these outpatient medical procedures to higher standards than those, just because no one said you couldn't is un-American. It's quite literally in the spirit of contravening the Constitutionally-prescribed system of governance that is our nation's pride. And at the end of the day, you can disagree with the results of the process, and you can try to fight it, but you'll lose in the end, and in the mean time, you'll simply have weakened some piece of the fundamental civic structure of our nation by fighting dirty.

(And before you try to throw my favorite Edmund Burke quote back at me, I think that there's a difference between defying the people's claimed will and the intended functioning of government. I am, for example, also opposed to filibusters and other procedural hackery on the part of the "good guys".)

I, for one, prefer to cooperate in prisoners' dilemmas, even those with high stakes. More on that in later posts, though perhaps not immediately.