Behind the scenes as the Supreme Court hears first abortion case since 2007

By Dave Andrusko

National Right to Life Political Director Karen Cross spoke at the pro-life rally outside SCOTUS today as they hear oral arguments in the case over the Texas pro-life law HB-2.

National Right to Life Political Director Karen Cross spoke at the pro-life rally outside SCOTUS today as they hear oral arguments in the case over the Texas pro-life law HB-2.

How’s this for breaking news? “Supreme Court Appears Sharply Divided as It Hears Texas Abortion Case.”

That’s the lead from the New York Times but it was typical of all the first stories coming out of this morning’s oral arguments in Whole Woman’s Health v. Hellerstedt.

At issue, as readers of NRL News Today are fully aware, is HB2, the omnibus 2013 Texas pro-life law. Previous to the justices accepting the case, HB 2 was best known outside the state for the filibuster that temporarily derailed the law.

Pro-abortion state Senator Wendy Davis catapulted her role in that filibuster to national fame, which tempted her to run what proved to be a disastrous campaign for governor in 2014.

This morning justices heard back and forth from challengers Stephanie Toti, of the Center for Reproductive Rights, and U.S. Solicitor General, Donald B. Verrilli, and Scott Keller, the Texas solicitor general, who ably defended HB2.

Litigants targeted two provisions): (1)that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs); and (2) that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies. The latter has already gone into effect. (Notably, pro-abortionists did not challenge the Pain-Capable Unborn Child Protection Act.)

“Several justices seemed frustrated by gaps in the factual record presented to them,” Liptak wrote. “The three more conservative justices said there was little evidence that clinics have closed or would close because of the law.”

This latter consideration is a point that National Right to Life’s director of education, Dr. Randall K. O’Bannon, has repeatedly made, most recently here and here.

By contrast, “The court’s four liberal justices were adamant that the restrictions imposed by the law served no medical purpose and cannot pass constitutional muster,” Liptak wrote.

Woman’s Health v. Hellerstedt is the first abortion case the High Court has taken up since 2007 when it upheld the federal ban on partial-birth abortions in Gonzales v. Carhart. It is assumed that a pivotal consideration will be whether the justices conclude that the requirements place an “undue burden” on a woman’s right to abortion, criteria first announced in the Court’s 1992 Planned Parenthood v. Casey decision.

Some news stories talked about the huge crowd that had assembled outside the Supreme Court building; some people had begun lining up on Tuesday! Liptak observed

One woman urged on those who had congregated, holding signs with messages like “Abortion on Demand and Without Apology” and “No Uterus No Opinion.” Speak up, she said, “so they’ll know that there’s a whole lot of people out here that they’re going to have to answer to!”

A group of anti-abortion demonstrators stood in a wide circle, quietly facing the crowd with signs that read “Protect Women Protect Life,” as abortion rights activists formed a ring around them, blocking them from view.

Reuters Lawrence Hurley added

Some anti-abortion protesters sang a religious hymn, “Spirit of the Living God,” as abortion-rights demonstrators surrounded them

My favorite stanza is the third and speaks to touching the heart of a woman or girl contemplating an abortion:

Because When You Speak, When You Move.
When You Do What Only You Can Do
It Changes Us, It Changes What We See And What We Seek

(You can listen to “Spirit of the Living God” at youtube.com.)