The case is Whole Woman’s Health v. Hellerstedt.
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It was unmistakably clear on Wednesday that the Supreme Court’s first close look at abortion rights in nine years will turn on the reaction of Justice Anthony M. Kennedy, and there were at least sturdy hints that he would lead the Court in one of two directions. In an intense argument in Whole Woman’s Health v. Hellerstedt that ran twenty-six minutes longer than scheduled, Kennedy seemed poised to find a way out of a four-to-four split — if the initial vote comes to that — or to strike down by a narrow vote the two restrictions at issue in the 2013 Texas law, known as “HB2.”
Within minutes after the argument began shortly after ten o’clock, it seemed that the case might bog down in a dispute about whether the case contains any solid evidence of whether HB2 was, in fact, the cause for the sudden closing of half of all abortion clinics in the state and would cause even more to close if the Justices upheld the law’s two main clauses. The two are a requirement that all abortion doctors have a professional privilege to admit patients to a nearby hospital, and a requirement that all abortion clinics upgrade to facilities capable of performing surgery. There was even some question about whether the admitting privilege was still at issue.
But when the argument turned from the reason for closures to a question of the capacity of any remaining clinics to handle the tens of thousands of abortions that women in the state seek every year, the case shifted abruptly. It was Kennedy who raised the possibility that the case be sent back to lower courts to allow lawyers to put in evidence about that capacity question.
