This post has been updated to include additional links to articles summarizing yesterday’s oral arguments and one to a transcript.
This post has been revised to reflect the death of Supreme Court Justice Antonin Scalia and to include links to more recent coverage of the Texas abortion case.
The U.S. Supreme Court hears oral arguments today in what may be its most important abortion case in a generation. The central issue in Whole Woman’s Health v. Hellerstedt is the extent to which states (in this case, Texas) can go in adopting restrictions — here, regulations on abortion clinics and doctors — before the hurdles become so high as to render a woman’s right to abortion all but meaningless for many.
A Supreme Court showdown has been brewing since Texas lawmakers passed the package of measures known as H.B. 2 in 2013. (Their first attempt was famously filibustered by state Sen. Wendy Davis). Among other provisions, the Texas law requires abortion clinics to adhere to surgical-level building requirements and abortion doctors to have admitting privileges at local hospitals. More than half of the state’s 41 clinics have shut down; if H.B. 2 stands, abortion rights activists say, no more than 10 would survive — and none west of San Antonio. About 17 percent of the women in Texas would face one-way travel distances of 150 miles or more.
The outcome of the case is anyone’s guess, but the sudden death of Justice Antonin Scalia on Feb. 13 means its impact could be less sweeping than legal experts had been predicting last fall. The key question is how Justice Anthony Kennedy, a Reagan appointee and the swing vote in so many 5–4 rulings over the past decade, will decide. If Kennedy sides with the court’s remaining conservatives, the likely result — a 4–4 split — would leave H.B. 2 intact but set no national precedent. If Kennedy sides with the court’s liberals, abortion opponents could be forced to rewrite a highly successful playbook that has led to more than 300 new restrictions since 2010.
To help sort through some of the issues at stake, here’s a ProPublica reading guide, updated from an earlier version published in November 2015.
For the most reliable source of Supreme Court news and analysis: Check out SCOTUSblog. Its section on the Texas case includes more than 80 friend-of-the-court briefs as well as a symposium of leading law professors on both sides of the abortion debate and a transcript of the March 2 oral arguments. To interpret the justices’ actions and reactions during those arguments, see these helpful recaps by The Washington Post, the Wall Street Journal, Ian Millhiser at Think Progress and SCOTUSblog’s Lyle Denniston.
For background on Planned Parenthood v. Casey, the 1992 Supreme Court decision at the heart of the Texas battle: See my ProPublica piece, “The Most Important Abortion Case You Never Heard About,” as well as these PBS interviews with leading abortion-rights and anti-abortion attorneys conducted in 2005. For a liberal perspective on how PP v. Casey’s “undue burden” standard reconfigured the landmark Roe v. Wade, see “Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice,” by New York Times columnist Linda Greenhouse and Yale Law professor Reva Siegel (more helpful context from Greenhouse can be found here). For the anti-abortion take on why Casey is flawed, see these articles by conservative legal scholars Steven Calabresi and Paul Linton.
For a discussion of how the Texas case fits into the anti-abortion movement’s grand strategy in recent years: See “Planning the End of Abortion,” by the Atlantic’s Olga Khazan, about Americans United for Life, the extraordinarily influential and effective group behind hundreds of abortion laws. Two other pieces — “Charmaine Yoest’s Cheerful War on Abortion” (about AUL’s president) and Mother Jones’ “Wham, Bam, Sonogram! Meet the Ladies Setting the New Pro-Life Agenda” — examine the movement’s recent shift in emphasis from protecting fetuses to protecting women. Also check out Viveca Novak’s “Citizen Bopp,” a profile of National Right to Life attorney James Bopp Jr.
For insight into why abortion opponents have been so successful in advocating for tougher health and safety laws: See The Philadelphia Inquirer’s coverage of Dr. Kermit Gosnell, found guilty in 2013 in the gruesome deaths of three babies and one woman, as well as feminist Katha Pollitt’s examination of his case, “Dr. Kermit Gosnell’s Horror Show.” In a similar vein is the New Yorker’s investigation of Stephen Chase Brigham, whose East Coast clinics were accused of performing unsafe, illegal abortions over many years in multiple states. The Federalist offers an anti-abortion perspective on the Gosnell and Brigham cases with “Pennsylvania Proves SCOTUS Should Uphold Texas Abortion Safety Standards.”
For an understanding of how H.B. 2 has affected women in Texas, especially in the Rio Grande Valley: See the Austin Chronicle’s “Roe’s End?”, The Atlantic’s “The Difficulty of Getting an Abortion in Texas” and Bloomberg’s “Texas Threat to Abortion Clinics Dodged at Flea Markets” by Esmé Elise Deprez.
For a look at how similar laws have affected other parts of the country: See “Shuttered,” by MSNBC’s Irin Carmon, on the decline in abortion access in red states, and Esquire’s profile of the last abortion doctor in Mississippi.
For background on some of the expert witnesses who’ve aided the spread of laws like H.B. 2: See RH Reality Check’s False Witnesses project. The 2014 investigation identified a network of social scientists and other experts who relied on misleading and distorted evidence designed to sway lawmakers and courts.
For social scientists’ perspectives on the real-world consequences of reduced abortion access: Go to the website of the Texas Policy Evaluation Project, a research consortium based in Austin that has published a barrage of studies over the last couple of years. Also worth a look is The New York Times magazine’s “What Happens to Women Who Are Denied Abortions,” which examines findings from the Turnaway Study, a long-term project based at the University of California–San Francisco that compares the lives of women who had abortions with those who wanted to terminate their pregnancies but were too late.
For insights into the Supreme Court justice in whose hands the Texas case rests: See Dahlia Lithwick’s “Anthony Kennedy’s Right to Choose” in Slate and Jeffrey Toobin’s 2005 Kennedy profile, “Swing Shift,” in the New Yorker. Also worth a look: MSNBC’s “Which Justice Kennedy will rule on abortion?” and The Washington Post’s “Arguments in Supreme Court abortion case pitched to audience of one.”