#StoptheSham: A ‘Whole Woman’s Health’ Oral Arguments Live-Tweet

Wherein I offer a tweet-by-tweet breakdown of the oral arguments.

Activists rally outside of the Supreme Court Wednesday to show their support for unrestricted access to abortion care. Lauryn Gutierrez / RH Reality Check

Abortion providers squared off Wednesday morning against the State of Texas during the much-anticipated oral arguments in the biggest abortion case to hit the U.S. Supreme Court in a decade, Whole Woman’s Health v. Hellerstedt.

Aside from a rather banal discussion of res judicata, a topic I will take up in an upcoming edition of ABLC’s Boom! Lawyered series, the best highlights of the arguments came from the women on the bench. Justices Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor questioned Texas’ medical justification for the provisions in HB 2 that require doctors to maintain admitting privileges at a hospital within 30 miles of the place where the abortion is performed—a regulation that, as I’ve written before, has no medical benefit. The other regulation in question requires abortion clinics to meet the standards of ambulatory surgical centers (ASCs), a prohibitively expensive endeavor involving medically unnecessary renovations determining, for example, how wide the hallways of a facility have to be.

Needless to say, pro-choice advocates decry these requirements, especially considering that abortions are one of the safest medical procedures in the country and do not need to be performed in a hospital.

During oral arguments, Justice Stephen Breyer, who is often forgotten when it comes to Supreme Court analyses, as he is the reliable white male vote in a quartet with a trio of liberal female justices, lobbed some poignant questions regarding the purpose of Texas’ law. He pointed out that Texas could not find a single patient who had benefited from the admitting privileges law. He then referenced Judge Richard Posner’s devastating Seventh Circuit Court of Appeals opinion in Planned Parenthood of Wisconsin v. Van Hollen, which rejected Wisconsin’s admitting privileges law, quipping that “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.”

That one example? Kermit Gosnell, the rogue abortion provider in Philadelphia who committed atrocities in his clinic there, which the Pennsylvania Department of Health failed to inspect for 15 years. Texas’ attorney attempted to argue that Gosnell necessitated HB 2, but Justices Kagan and Sotomayor weren’t buying it. Sotomayor referred to that so-called necessity as “a self-created problem.”

And that’s exactly what it is.

Let’s hope Kagan, Sotomayor, Breyer, and Ginsburg can convince Justice Anthony Kennedy that HB 2 is the travesty of a law that it is.

And in the meantime, I hope you enjoy my tweet-by-tweet breakdown of the oral arguments.