Is the Burden Undue?

Summary

Podcast Summary

Podcast: Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Is the Burden Undue?
Date: March 6, 2016
Host: Dahlia Lithwick
Guest: Pamela S. Karlan (Stanford Law School), Supreme Court arguments

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Overview:

This episode dives deeply into the pivotal Supreme Court case Whole Woman’s Health v. Hellerstedt, a major challenge to Texas's restrictive abortion law known as HB2. The discussion explores the law’s impact, the constitutional frameworks underpinning abortion rights, the ideological landscape of the Supreme Court post-Scalia, and compelling moments from oral arguments. Dahlia Lithwick is joined by Professor Pamela Karlan to break down the implications for reproductive rights, judicial responsibility, and the ongoing struggle over undue burdens in abortion access.

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Main Discussion Points & Insights

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1. A Rare Event: Justice Clarence Thomas Speaks (00:00–04:01)

• Context: The episode opens with a recounting of an unusual Supreme Court moment: Justice Clarence Thomas asks a question from the bench for the first time in ten years, during a gun rights-related case.
• Key Exchange: Thomas presses hard on whether a misdemeanor conviction can suspend a constitutional right, emphasizing the fundamental nature of Second Amendment protections.
  • Quote:

    "Can you give me another area where a misdemeanor violation suspends a constitutional right?"
    —Justice Clarence Thomas (02:12)

• Significance: This moment underscores how the Court’s dynamics are shifting in the wake of Justice Scalia’s death, foreshadowing further unpredictability in big cases like Hellerstedt.

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2. Whole Woman's Health v. Hellerstedt – Legal Background and Stakes (04:23–08:59)

• HB2 Legislation: The Texas law at issue imposes two main requirements:

  1. Ambulatory Surgical Center (ASC) Standards: All abortion clinics must meet these exacting hospital-like standards.
  2. Admitting Privileges: Doctors performing abortions must have hospital privileges within 30 miles.

• Impact: The effect of these provisions would be to reduce the number of clinics in Texas drastically—from about 40 to perhaps as few as 10, for 5.4 million reproductive-age women.

• Undue Burden Test: The case hinges on whether such regulations constitute an “undue burden” (from Planned Parenthood v. Casey) on a woman’s constitutional right to obtain an abortion.

  • Pam Karlan:

    "Thousands, indeed hundreds of thousands of women in Texas will find it difficult if they need to get an abortion to find a clinic in Texas..." (08:20)

  • Dahlia Lithwick:

    "...even though this may not set any kind of national precedent, it would absolutely have an on the ground impact immediately..." (08:49)

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3. Roe, Casey, and the Evolution of the “Undue Burden” Standard (09:19–13:50)

• Roe v. Wade (1973): Established a fundamental liberty right under the 14th Amendment for women to choose abortion, with the state’s regulatory power increasing as pregnancy progresses.

  • Pam Karlan:

    "...the decision, and making that decision, is a fundamental liberty that women enjoy." (09:46)

• Planned Parenthood v. Casey (1992): Adjusted that framework, focusing on whether state regulations unduly burden a woman’s right to choose before fetal viability.

  • Justice Sandra Day O’Connor (audio clip):

    "...a woman to decide to have an abortion before the fetus attains viability and to obtain it without undue interference from the state." (11:34)

• Key Question:

  • What counts as an “undue” burden?
  • Should courts examine actual legislative intent and facts, or simply accept lawmakers’ stated justifications?
  • Pam Karlan:

    "The key issue is, which is when does a burden become undue? How do we measure an undue burden versus simply the state's decision to try and persuade a woman..." (13:01)

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4. HB2’s Provisions—Facts, Real Burdens, and Pretext (14:31–20:05)

• Explaining the Requirements:

  • ASC Requirement: Forcing clinics to meet expensive (often infeasible) standards unnecessary for the safety of abortion procedures, especially medication abortions.

  • Admitting Privileges: Hospitals often refuse privileges to abortion providers for business, religious, or political reasons, not medical necessity.

  • Disproportionate Burden: Clinics may close not due to safety problems, but because compliance is impossible or prohibitively costly.

  • Pam Karlan:

    "It's actually 100 times safer to have an abortion than to carry a pregnancy to term." (20:05)

• Pretextual Justifications:

  • Language about "protecting women’s health" is often a façade. The explicit purpose, as acknowledged by lawmakers’ own statements, is to shutter abortion clinics.
  • Lithwick:

    "...the point is to shutter clinics. That's the point. And yet undergirding all of this is this language of helping women be really safe..." (19:07)

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5. Shifting Legal Strategies & The Power of Amicus Briefs (21:18–25:27)

• Narrative Amicus Briefs:
  • Supporters filed personal stories (including from actress Amy Brenneman) to humanize abortion and counter claims that women routinely “regret” the procedure.
  • Mirroring the effect of the LGBT “coming out” movement on judicial perceptions of gay rights.
  • Pam Karlan:

    "...to do for reproductive rights and reproductive autonomy what the coming out movement did for the LGBT community." (25:27)

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6. Anti-Abortion Arguments: Invoking Horror Stories (26:33–27:51)

• Kermit Gosnell as a Scare Tactic:
  • Opponents point to rare horror stories like the convicted abortion provider, Gosnell, to rationalize extreme regulation of all clinics.
  • Pam Karlan:

    “…pointing to one doctor who violated a series of laws in another state is [not] a justification for shutting down a series of clinics…” (27:21)

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7. The Fifth Circuit’s Judicial Abdication (27:51–29:14)

• Key Issue:

  • The Fifth Circuit upheld HB2, refusing to second-guess legislative “fact-finding,” essentially granting the state unchecked authority.

  • Pam Karlan:

    “...if the purpose of the law is to put a burden in the way of women who want to make the decision that is constitutionally theirs to make, the law is invalid.” (28:41)

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Notable Quotes & Memorable Moments

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Supreme Court Oral Arguments – Highlights & Key Exchanges

Opening & Setting the Stakes (31:12)

• Stephanie Toti (attorney for clinics):

  “The Texas requirements undermine the careful balance struck in Casey between states’ legitimate interests in regulating abortion and women’s fundamental liberty...” (31:12)

Evidence of Clinic Closures (31:53–32:33)

• Justice Kagan’s “Controlled Experiment” Analogy:

  “It’s like you put the law into effect, 12 clinics closed, you take the law out of effect, they reopen.” (32:33)

Justice Ginsburg’s Empathy for Real-World Impact (37:10–38:09)

• Ginsburg on distances women must travel:

  “Now 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 requirements. 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.” (37:39)

Ginsburg’s Golden Gloves Moment (43:00)

• Ginsburg:

  "What it's about is that a woman has a fundamental right to make this choice for herself. That's what we start. That's the starting premise. ...the focus is on what woman and it has to be on the segment of women who are affected." (43:00)

Humor and Practicality (39:34–40:20)

• Breyer pressing the real-world effect:

  “Where in the record will I find evidence of women who had complications who could not get to a hospital...?” (39:34)

Ginsburg on Relative Risk (41:00–41:22)

• Ginsburg:

  “As compared to childbirth, many, many much riskier procedure, is it not?” (41:00) “Is there really any dispute that childbirth is a much riskier procedure than an early stage abortion?” (41:14)

Sotomayor’s Relentless Fact-Finding (34:48–35:27)

• Sotomayor:

  “Is there any other medical condition like taking the pills, that are required to be done in hospital, ...but an independent ...I know there are cancer treatments by pills. Now, how many of those are required to be done in front of the doctor?” (35:03)

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Timestamps for Key Segments

| Timestamp | Segment | |--------------|----------------------------------------------------------------| | 00:00–04:01 | Justice Thomas breaks his silence in oral arguments | | 04:23–08:59 | Overview of HB2, stakes for Texas and national trends | | 09:19–13:50 | Roe, Casey, undue burden standard explained | | 14:31–20:05 | Anatomy of HB2’s provisions and why they’re burdensome | | 21:18–25:27 | Amicus briefs and the power of storytelling in the law | | 26:33–27:51 | Anti-abortion scare tactics: Kermit Gosnell argument | | 27:51–29:14 | The Fifth Circuit Court of Appeals: abdication of fact-finding | | 31:12–35:39 | Supreme Court oral argument—clinic side | | 36:06–42:15 | Oral argument—Solicitor General and Texas’ defense | | 43:00 | Ginsburg’s closing, fundamental right emphasized |

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Conclusion & Takeaways

• The Decision’s Influence: Even a deadlocked Court (4–4 post-Scalia) would leave in place a Fifth Circuit decision with sweeping consequences for Texas and a signal to other states.
• The “Undue Burden” Puzzle: The central challenge is how courts should weigh real-world evidence, legislative intent, and the actual effects on women’s access.
• Human Stakes: Oral arguments and supporting briefs reveal deep concern for women who would be most affected: poor, rural, and minority women. The language of “health” and “protection” is critically examined as pretexts for restricting rights.
• The Judicial Role: The episode critiques courts and legislatures that ignore facts and real-world consequences, underlining the constitutional promise affirmed in Casey and Roe:
  • Quote (Ginsburg, 43:00):

    “What it’s about is that a woman has a fundamental right to make this choice for herself. ...the focus is on what woman and it has to be on the segment of women who are affected.”

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Transcript

[Dahlia Lithwick]

Amicus is sponsored by Casper, an online retailer of premium mattresses for a fraction of the price. Casper mattresses come with free delivery and returns within a 100 day period and get $50 towards any mattress purchase by visiting Casper.comAmicus and using the promo code Amicus and by Amazon Detective Harry Bosch is back on the new season of Amazon's original series Bosh, based on the best selling novels by Michael Connelly. Stream the new season on March 11th on Amazon. Welcome to Amica's Slate Supreme Court Podcast. I am Dahlia Lithwick, Slate Supreme Court Reporter and as you may know already, this was one of those weeks that tend to get U.S. supreme Court people very, very excited. On today's show, we're going to focus on one case, whole Women's Health versus Hellerstedt, that was argued Wednesday morning at the high Court as thousands of protesters commandeered the sidewalks outside, screaming. But before we get we wanted to bring you a little audio that most of you won't yet have heard. Although news of this sound on Monday morning just about broke the Internet, it all happened early Monday, toward the tail end of arguments in Boisin vs United States, a really arcane and frankly, boring case about domestic violence convictions and gun ownership in the face of petitioners hypothetical. The press gallery was nearly empty. I had only come up to this early case to try to clear my head for the next argument that was a complicated case about judicial recusal rules. But this argument was proceeding so very snoozily that even the Justice Department lawyer Alana H. Eisenstein started to wrap up her presentation really early. If there are no further questions, she said, signaling her intent to sit down at about 10:45am 15 minutes before she needed to wrap up. There are no further questions. And suddenly, heads swiveled, jaws dropped. Next craned and we all heard something we have not heard in the courtroom in 10 years.

[Justice Clarence Thomas]

One question can you give me this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?

[Dahlia Lithwick]

It was Clarence Thomas, dun dun dun, asking a question. Nobody could believe it. Even the chief justice looked stunned. Eisenstein struggled to answer. What? Who's talking? Thomas pressed on.

[Justice Clarence Thomas]

Well, I'm looking at the you're saying that recklessness is sufficient.

[Dahlia Lithwick]

Voisin was really just a case about how to read a statute that takes gun ownership away from people who have misdemeanor domestic violence convictions. But Clarence Thomas wanted it to be perfectly clear that this was pushing hard on what he sees as a fundamental Second Amendment right to bear.

[Justice Clarence Thomas]

Can you think of another constitutional right that can be suspended based upon a misdemeanor violation?

[Dahlia Lithwick]

And so this colloquy went back and forth, back and forth, with Justice Thomas pressing and pressing on this Second Amendment gun ownership issue, asking at the end, nine questions in total. And finally, it was left up to Justice Stephen Breyer to remind the Court that this is in fact, pretty much just a statutory case about how to read the language of a law. And that really the big Second Amendment question wasn't really an issue in the case.

[Justice Clarence Thomas]

We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case come up that question. So our point is we don't have to decide that here.

[Dahlia Lithwick]

That's correct, you, Honor. At this point, it's been less than one month since Justice Scalia left us. But nothing could have made clearer than Monday morning that everything at the court is going to be completely different. So before we turn to the big abortion case this week, I want to tell you a little bit about Casper Mattresses, our first sponsor of today's show. If you're anything like me, after a week like this one, you need a good night's sleep. And that's where Casper Mattresses come in. Casper is an online retailer of premium mattresses sold for just a fraction of the price. The beauty of a Casper mattress is it's obsessively engineered at a shockingly fair price, featuring just the right sink and just the right bounce. The other great thing is that you are offered a risk free trial policy and a return policy. Try sleeping on a Casper for 100 days with free delivery returns. All you need to pay is $500 for a twin size mattress and $950 for a king size mattress. Compare that to the industry standard. That is an amazing price. Get $50 toward any mattress purchase by visiting Casper.com Amicus and using the promo code amicus. So now we want to turn to the great big abortion case that was argued this past week at the Supreme Court. You've Pro Women's Health vs. Hellerstedt. This basically was an appeal that came out of HB2, Texas's famous omnibus abortion regulation that was passed in 2013, famously over Wendy Davis's filibuster. Now, there's only two provisions of the law that are challenged before this particular case in the Supreme Court. One has to do with retrofitting every clinic that provides abortions as an A SC that's ambulatory surgical center. That means things like extra wide hallways, specific broom closets and certain air conditioning systems. The other provision has to do with whether doctors who perform abortions need to get what's called admitting privileges in hospitals 30 miles away from wherever they're doing the procedure. These kinds of laws are commonly known as targeted regulation of abortion providers or trap laws. When these two provisions were challenged in the court, a district court judge struck them both down saying, nuh. These represent what's called an undue burden on the right to an abortion. The undue burden test, as we'll discuss later, is the holdover from Planned Parenthood versus Casey. The last time the court heard a big, big abortion case, the fifth Circuit Court of Appeals said, no, we're okay with these laws. They don't constitute an undue burden. They upheld them. And so in Texas, we've seen the state go from 40 abortion providers to and if this law is truly allowed to go into effect, it may be as few as 10 providers left in the entire state where 5.4 million women are of reproductive age. The stakes really couldn't be higher. We wanted someone really smart and thoughtful on this issue to help walk us through it before we talked about oral argument. And to do that, we reached out to Pam Karlan, who is calling into the show all the way from Florence, Italy. She teaches law at Stanford Law School and she co directs the school Supreme Court Litigation Clinic. She served as a deputy assistant attorney general in the civil Rights division of the Justice Department and she is co author of casebooks and amicus briefs and articles. Too many to mention. And I should add, Pam, in case you didn't know this because you're in Italy, that Cosmopolitan magazine last week named you as one of quote, 13 women who should be considered to replace Justice Scalia. Welcome to Amicus, Pam thank you so much. So let's talk about the first big, big abortion case that the Supreme Court is considering in nine years. This was going to be a big honking blockbuster except for the fact that we now have a 44 court. Is Hellerstedt still a big deal? Pam?

[Pam Karlan]

It is still a big deal and in part it's a big deal because the fifth Circuit issued an opinion that essentially allows Texas to close down three quarters of the abortion clinics in Texas. And and if the Supreme Court divides 4 to 4, that opinion will stay on the books and thousands, indeed hundreds of thousands of women in Texas will find it difficult if they need to get an abortion to find a clinic in Texas that can perform one.

[Dahlia Lithwick]

So it's important to flag that even though this may not set any kind of national precedent, it would absolutely have an on the ground impact immediately on.

[Pam Karlan]

Coming down well in Texas and in Mississippi, the next state over. And it would set a tone that would give courts around the country, faced with abortion restrictions, some guidance and some hints as to where the Supreme Court now is on the question.

[Dahlia Lithwick]

So let's go back to where the Supreme Court was on the question. Pam, I wonder if you could help listeners who aren't completely sure what happened in Roe v. Wade. That was an opinion, probably one of the most important opinions authored by Justice Harry Blackmun, for whom you clerked. Obviously, this was before you clerked. But can you help us understand the core holding of Roe and what it is that could be on the line this week?

[Pam Karlan]

Sure. So in 1973, the Supreme Court held that the due process clause of the 14th Amendment, which protects liberty liberty is the word that the clause uses, encompasses a woman's decision whether or not to bear a child, that that decision and making that decision is a fundamental liberty that women enjoy. At the time of Roe, the Supreme Court said that in the first trimester of a woman's pregnancy, she has the right to terminate that pregnancy. And really the state has very little in the way of regulation that can influence her choice. In the second trimester, a woman still can terminate a pregnanc. That's still before viability, but the state's interest has increased somewhat and the state's regulation and its power to regulate has increased. And then after viability, states have the power to ban abortion except in cases where it's necessary to save a woman's life. Now that was in 1973. The Supreme Court, subsequently in the Planned Parenthood against Casey case in 1993, changed somewhat the way in which courts analyze restrictions on abortion decisions and said that a state could not impose what it referred to as an unnecessary burden on a woman's decision whether to terminate a pregnancy prior to viability.

[Dahlia Lithwick]

Now let's listen, if we can, to Sandra Day o' Connor reading her opinion in that landmark Planned Parenthood v. Casey decision. This is 1992. She's reading her opinion from the bench, and let's listen to how she tries to describe the new test post Roe.

[Justice Sandra Day O'Connor]

After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court and the rule of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undue interference from the state. We also reaffirm the state's power to restrict abortion after fetal viability if exceptions are made where the woman's life or health is in danger. We also hold the state has legitimate interest from the outset of pregnancy in protecting the health of the mother and the life of the fetus that may become a child, and that the state may further these interests so long as it does not unduly burden the woman's right to choose.

[Dahlia Lithwick]

So, Pam, help us understand, because this is pretty squishy language, right? What the plurality, and this is comprised, I think surprisingly, of Sandra Day o', Connor, Justice David Souter and Justice Anthony Kennedy. What they come out with In Planned Parenthood vs Casey is this idea that, sure, the state has an interest in protecting fetal life and protecting the health of the mother. They can throw up some roadblocks, but the roadblocks become impermissible when you reach some magical place called an undue burden. Is that basically what she's saying?

[Pam Karlan]

Yes. And you've put your finger on exactly what the key issue is, which is when does a burden become undue? How do we measure an undue burden versus simply the state's decision to try and persuade a woman to choose not to terminate a pregnancy? And it's a tough question, and it's made tougher in the case that the court has in front of it because there's a second or subsidiary question, which is how do we figure out whether a burden is undue or not? The fifth Circuit, the court of appeals that upheld Texas law, said you don't look at whether the law actually serves the interest the state says it's designed to serve. You simply hypothesize about that. Right.

[Dahlia Lithwick]

And there's a real question looking at this case, whether the Fifth Circuit just abdicated its responsibility to, I think, as Linda Greenhouse has put it this week in the New York Times, to even look at facts at all. But I wonder if before we get there, you wouldn't help us understand the two issues. One of them is the requirement that all abortion facilities become ambulatory surgical centers. The other is the admitting privileges requirement. I mean, both of those sound, I suppose, like they're not the that burdensome on women and they are protecting women's health. Can you help us think through what those two requirements are and why they constitute burdens?

[Pam Karlan]

Sure. I want to stop here for just a moment and say there are two kinds of abortions that are performed early in pregnancy. And we're talking here about early abortions. There are surgical abortions which involve dilating the cervix and performing a D and C essentially on a woman, a dilation and curettage where you remove the contents of the uterus. And then there are so called medical abortions which involve pills. RU486 is the common way of referring to the drugs that women take that first stop the lining of the uterus from continuing itself. And the result of that is that you can't maintain a pregnancy, and then a second drug that causes expulsion of the contents of the uterus. So the first requirement, the ambulatory surgical center requirement, says if you're going to perform either a surgical abortion or a medical abortion, you have to qualify as an ambulatory surgical center, which means, among other things, you have to have a large operating room, you have to have corridors with one way traffic. Essentially you have to be a mini hospital, as opposed to the kinds of clinics that have been performing abortions in Texas for years and years and years. And for most of the clinics, in order to become ambulatory surgical centers, they'd have to spend more than a million dollars. And many of the clinics actually are on plots of land that aren't large enough for you to build an ambulatory surgical center. So you'd have to go someplace else to build one. So that's the first requirement, the ambulatory surgical center requirement. It requires a level of technical equipment and the like that really isn't used in abortions. It isn't used at all in medical abortions where people take a pill and it's not used in surg abortions. And to add a kind of insult to the injury there in Texas, generally, when they require that something become an ambulatory surgical center, they grandfather in the facilities that were performing the operation before so that they don't have to change and they have a waiver process. So you can get a waiver from some of the requirements. But HB2 says that with regard to facilities that perform abortions, you can't get a waiver. So that, for example, if a woman has a spontaneous miscarriage, her doctor can perform a D and C in a facility that's not an ambulatory surgical center. But if she wants an abortion at the same stage of pregnancy, her doctor can't do that. So that's the ambulatory surgical center requirement. The second requirement is a requirement that a physician who performs an abortion have admitting privileges at a hospital within 30 miles of the site where he performs the abortion. So within 30 miles of the clinic. And here's the difficulty with that. Many hospitals don't give admitting privileges to doctors whose practices don't generate large numbers of admissions to a hospital. So, for example, in the record in the Texas case, there's one hospital that says if a physician doesn't perform or expect to perform 24 procedures at the hospital in the course of a year, they're not going to give him admitting privileges, because admitting privileges are really about the business of a hospital. Well, here's the problem with that. Abortions in Texas are so safe that no doctor who performs abortions is going to necessarily have 24 admissions to a hospital in a year. That would be a sign of a terrible doctor in a practice that involves performing abortions.

[Dahlia Lithwick]

Is it worth saying also, Pam, that part of the reason we don't really need admitting privileges is that hospitals have to take, no matter who you are, if there's some crisis, a hospital has to take you. And also that a lot of hospitals are declining to give admitting privileges to physicians for all sorts of religious and political reasons, right?

[Pam Karlan]

Absolutely. Your doctor's admitting privileges simply go to whether your doctor, in some sense, will take care of you in the hospital, not to whether the hospital will take care of you. And as several of the Mikas briefs point out, not only does a hospital have to take you if you have a health emergency, but in many cases, they expect that a doctor within the hospital or a hospitalist from your primary care physician's office is going to be the person overseeing your hospital care, not the doctor who performed a discreet procedure like an abortion.

[Dahlia Lithwick]

So this raises this just fundamental at the center of this case, which is the pretext, right, that all of these TRAP laws are done under this guise of, look, we're just helping women. We want things to be safe. But then we know one fact in this case is that Texas's lieutenant governor, David Dewhurst, tweeted out when HB passed, he tweeted out a map of Texas, all the clinics that would be closed, and tweeted out this would essentially ban abortion statewide. So part of what's really odd about these TRAP laws is that it's pretty understood that the point is to shutter clinics. That's the point. And yet undergirding all of this is this language of helping women be really safe from a procedure that is, in fact, far safer than a colonoscopy or other surgical procedures that aren't regulated this way.

[Pam Karlan]

Well, in Texas, it's actually 100 times safer to have an abortion than to carry a pregnancy to term. The death rate for abortions in Texas is 0.27 women per hundred thousand procedures performed. And the death rate among women who carry a pregnancy to term, the mortality rate is 27 per hundred thousand. So everybody understands that this is not really about a woman's health. But the Supreme Court created this temptation to make arguments about women's welfare in the Gonzalez against Carhartt decision that talked about the interests of the woman. And so, you know, the anti abortion folks, the anti choice folks, have realized that arguments that pitch a woman's interest against a fetus's interest tend not to persuade the people they're trying to persuade. And so they are trying instead to argue that they're really trying to help women, because that's a way to try and blunt what would otherwise be the obvious response to them, that they're trying to deny women the right to choose.

[Dahlia Lithwick]

And just to be clear, Carhartt is the 2007 case in which the Court chose to uphold the partial birth abortion ban. So this brings us inexorably, as every show brings us inexorably to Anthony Kennedy for now. For now, because he was in this plurality in Casey, and it's worth pointing out, since Casey, he has upheld every abortion restriction that has come across his desk. He is not upheld ambivalent about this. But can I ask you what your thoughts are on really the raft of fascinating amicus briefs in this case that are the narrative briefs there are? You know, I think Adam Liptak had a story about how Amy Brennaman is involved in an amicus brief, the actress, and that there's been a real attempt to humanize this fact that, you know, one in three women has had an abortion in her lifetime. These are real people that their own autonom and economic necessity required this. Do you think those kinds of reasons. And there are similar briefs on the other side? Yeah, the regrets briefly, the regrets brief. And I wonder if you think it seems to me as though this is an attempt to put a face on Hellerstedt, but I wonder if you think it's sort of an attempt to say to Justice Kennedy, look at these people, these are real people. This is not just a question about, you know, the Constitution. These are real women and these are their lives.

[Pam Karlan]

Well, I think it's certainly an attempt to do that. Whether it will have an effect one way or the other is hard to know. I think some of the inspiration for these briefs, I think it's kind of twofold. One is to combat his reliance, Justice Kennedy's reliance in Gonzalez against Carhartt on a regrets brief by saying, we're women who had abortions and we don't regret it. It was the right decision for us. So that he understands that this is at best, a mixed issue. The second thing is, I think it reflects a broader understanding of the movement that led us from Bowers against Hardwick to Obergfeld, which is now.

[Dahlia Lithwick]

Pam, let's be. Pam, let me be clear. Bowers v. Hardwick is the 1986 case that upheld the constitutionality of Georgia's sodomy laws that would criminalize sex between private consenting adults if they are gay.

[Pam Karlan]

Sure. So in 1986, which was actually the high watermark of abortion rights at the Supreme Court, the year of Thornburg against American College of Obstetricians and Gynecologists, which reaffirmed Roe and struck down a number of provisions that actually were quite like the provisions that the Supreme Court Court later upheld in Casey. That was the low water mark for gay rights in the United States. It was the year of Bowers against Hardwick and an announcement by five members of the Supreme Court that they thought any claim by gay people to the liberties that everyone else enjoyed was. And here I'm quoting the Supreme Court, at best, facetious. Well, Fast forward to 2013 in the Windsor case, in 2015, and the Obergfeld case. What changed during that time? Well, what changed is gay people came out, and I think that affected how judges thought about the claims of gay people to equal rights, because it wasn't just that they knew gay people. They now knew that they knew gay people. And over that same period of time, abortion became increasingly a private concern in some ways. And so, of course, the justices all know people who've had abortion, but they may not know that those people have had abortions. And I think some of the impulse in these briefs is to do for reproductive rights and reproductive autonomy what the coming out movement did for the LGBT community.

[Dahlia Lithwick]

So, Pam, of course, the response to that on the other side is Kermit Gosnell. Kermit Gosnell. Kermit Gosnell. And for listeners who aren't aware of who he is, he was was the former Philadelphia abortion doctor who was convicted and sentenced to life in prison for abortion procedures that were not only illegal, but quite horrific and graphic. And so what we hear often in the briefs on the other side and proponents of these Texas regulations is, look, we are just trying to protect against the fact that abortion doctors are corrupt and abortion facilities are filthy abortion mills. And this is a story that I think leads us to David Daleyden and the Planned Parenthood sting videos and just the version of the story that is that everything about Planned Parenthood, about whole women's health, about women's reproductive care, is basically corrupt and filthy and needs to be hyper regulated.

[Pam Karlan]

Well, you know, abortion, like all other medical procedures, was already regulated. And nothing about the Texas law is going to make abortion safer in Texas. And they already had the power to go after abortion providers who didn't maintain safe and sanitary facilities. That's not anything that this law provided that wasn't already there.

[Dahlia Lithwick]

So is the reliance on horror stories about Kermit Gosnell, the abortionist who really did commit horrific atrocities. Is that just for lack of any other argument that it's such important sort of placeholder in the briefs on the other side?

[Pam Karlan]

I think that's right. I mean, I don't think that pointing to one doctor who violated a series of laws in another state is a justification for shutting down a series of clinics that had lower mortality rates than even the low mortality rates of abortion providers in other states. This law was totally unnecessary to protect women's health. And the only real effect of this law was to do what its proponents intended, which was to shut down abortion clinics willy nilly.

[Dahlia Lithwick]

I wonder if you can just end by coming back to something you said at the very beginning of this conversation, which is that the fifth Circuit Court of Appeals, when they had the opportunity to look at HB2 and to look at the district court order below, which had struck down both of these laws, simply said, you know what? Ours is not to decide facts. And this is the quote from the fifth Circuit opinion. It is not the court's duty to second guess the legislative fact finding, improve on or cleanse the legislative process. So, so basically, I think what they're saying is we're giving carte blanche to legislatures to just make some argument that sounds pretty plausible and we're good. That's a complete abdication of the judicial role, isn't it?

[Pam Karlan]

Well, it's not just a complete abdication of the judicial role, but it really flies in the face of what the plurality opinion, the joint opinion, said in Casey, which is you have to look at what the purpose and the effect of a law are. And if the purpose of the law is to put a burden in the way of women who want to make the decision that is constitutionally theirs to make, the law is invalid. So you have to look at the purpose of the law. You can't just say, well, here's a purpose that might be okay. You have to ask what the actual purpose of the law was.

[Dahlia Lithwick]

So we want to thank you, Pam Karlin, for calling in from Florence and to set you free back to enjoy art and good food until you return to the United States.

[Pam Karlan]

There's good food in the United States.

[Dahlia Lithwick]

Pam Karlin teaches law at Stanford Law School, where she also co directs the school's Supreme Court Litigation Clinic. And Pam, we so enjoyed having you on the show today and hope to have you back soon.

[Pam Karlan]

I hope so, too. Ciao.

[Dahlia Lithwick]

Now in a minute, we're going to take you into the actual courtroom for arguments in Hellerstedt. But before we do, we've got a word from our other sponsor on today's show, Amazon Prime. Amazon's original series Bosch returns for an all new season based on Michael Connelly's best selling novels. Harry Bosch, the tenacious LAPD homicide detective, is back on the job after an involuntary leave of absence. His first case may provide his biggest challenge yet as he follows a dangerous trail of corruption and collusion, one that uncovers the dark side of the police department and threatens Bosch's relentless pursuit of truth. Stream the new season of Bosch on March 11th on Amazon Prime Video and listen to their companion podcast, a Fine Mist of blood on iTunes. March 11th. Now we want to take you inside the top secret red curtained courtroom for the actual oral arguments in whole Women's Health vs. Hellerstedt. Now the audio is already up over at the U.S. supreme Court website and I would really urge you to listen to all 90 minutes of it when you're at the gym because it is awesome. But we wanted to put some of it into your ears before we let you go this weekend because it was, to be sure, a barnstormer. So to set the scene, I want to start with Stephanie Todi, who represents the abortion clinics that are challenging these new Texas regulations. Here is her opening statement.

[Stephanie Todi]

Mr. Chief justice, and may it please the court. The Texas requirements undermine the careful balance struck in Casey between states legitimate interests in regulating abortion and women's fundamental liberty to make personal decisions about their pregnancies. They are unnecessary health regulations that create substantial obstacles to abortion access.

[Dahlia Lithwick]

Eventually, the Chief Justice, John Roberts, begins to closely question toady about whether the 10 or 11 clinics that have had to close in Texas did so specifically because of the new law or they did so for some other reason. And what that other reason might be.

[Stephanie Todi]

The timing of the closures alone.

[Chief Justice John Roberts]

I'm sorry, yeah. What is the evidence in the record that the closures are related to the legislation?

[Stephanie Todi]

The timing is part of the evidence, your honor.

[Dahlia Lithwick]

After a little while, Justice Elena Kagan jumped in to supply the answer to that question.

[Justice Elena Kagan]

Ms. Toady, could I, could I just make sure I understand it? Because you said 11 were closed on the day that the admitting privileges requirement took effect, Is that correct?

[Stephanie Todi]

That's correct.

[Justice Elena Kagan]

And is it right that in the two week period that the ASC requirement was in effect, that over a dozen facilities shut their doors and then when that was stayed, when that was lifted, they reopened again immediately, is that right?

[Stephanie Todi]

That is correct, your honor.

[Justice Elena Kagan]

And it's almost like a perfect controlled experiment as to the effect of the law, isn't it? It's like you put the law into effect, 12 clinics closed, you take the law out of effect, they reopen.

[Dahlia Lithwick]

Now, around now is where justice Anthony Kennedy, remember his first name is all eyes on Kennedy suggests that maybe the solution is to just remand this whole thing back to the lower courts in Texas and have them take another look.

[Justice Clarence Thomas]

The state, I think, is going to talk about the capacity, capacity of the remaining clinics. Would it be A, proper and B, helpful for this court to remand for further findings on clinic capacity?

[Stephanie Todi]

I don't think that's necessary, your honor.

[Dahlia Lithwick]

I think there's at this point, Justice Ruth Bader Ginsburg hops in to ask the chief justice to give the lawyer for the clinics a little bit more time. Here she is.

[Justice Ruth Bader Ginsburg]

We have absorbed, absorbed so much of your time with the threshold question. Perhaps you can she have some time to address the merits.

[Chief Justice John Roberts]

Why don't you take an extra five minutes and we'll be sure to afford.

[Justice Clarence Thomas]

You rebuttal time after that.

[Stephanie Todi]

Thank you, Mr. Chief Justice.

[Dahlia Lithwick]

With this extra time, Justice Sonia Sotomayor decides it's time to argue her case. Let's have a listen.

[Justice Sonia Sotomayor]

There's two types of early abortions 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.

[Justice Elena Kagan]

Correct.

[Stephanie Todi]

Under Texas law, she must take them at the facility.

[Justice Sonia Sotomayor]

But.

[Stephanie Todi]

But that is otherwise Correct.

[Justice Sonia Sotomayor]

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

[Stephanie Todi]

That's correct, yes.

[Justice Sonia Sotomayor]

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

[Stephanie Todi]

That's correct, your honor.

[Justice Sonia Sotomayor]

All right.

[Dahlia Lithwick]

Long after Stephanie Toti's Time is up in defending the clinics. Justice Sotomayor is still going and she's showing no sign of letting up. Here is her closing back and forth with Stephanie Cody.

[Justice Sonia Sotomayor]

So your point that I'm taking in is that the two main health reasons show that this law was targeted at abortion only.

[Stephanie Todi]

That's absolutely correct.

[Dahlia Lithwick]

Yes, you, Honor. Thank you, Counsel.

[Justice Sonia Sotomayor]

I'm sorry, is there any other medical condition like 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 the doctor?

[Stephanie Todi]

None, you, Honor. There are no other medication requirements and no other outpatient procedures that are required by law to be performed in an asc.

[Chief Justice John Roberts]

Thank you, Counsel.

[Dahlia Lithwick]

Now it's Don Verilli's turn. He's the United States Solicitor General and he's been given 10 minutes to argue against the Texas respons restrictions on behalf of the Barack Obama administration. Justice Samuel Alito continues to press him hard on whether there is any good evidence that the remaining clinics in Texas, there will only be nine left when this law goes into full effect. Can't just take care of all of the state's needs.

[Justice Samuel Alito]

There's no evidence of the actual capacity of these clinics. And why was that not put in? Particularly since if we look at the Louisiana case, we can see that it's very possible to put it in. And some of the numbers there are quite amazing. A doctor there performed 3,000 abortions in a year. So we don't really know what the capacity of these ASC clinics are.

[Justice Clarence Thomas]

Well, I think you have expert testimony in that regard.

[Justice Samuel Alito]

Yeah, but what is it based on? It's not based on any hard fact, any hard statistics.

[Chief Justice John Roberts]

Well, look at this.

[Dahlia Lithwick]

It's common sense that you. Well, common sense, but it's beyond that.

[Justice Clarence Thomas]

As I said, Justice Alito, they studied the period of time in which half the clinics of state were closed, and you would expect if those clinics, that the additional ASCs could handle the capacity they would have, and they didn't, he said.

[Dahlia Lithwick]

Now it's the Texas Solicitor General Scott Keller's turn at the podium. He's been given 30 minutes to defend this Texas statute. But Ruth Bader Ginsburg kind of comes at him like the Tasmanian Devil.

[Justice Ruth Bader Ginsburg]

How many women, women are located over 100 miles from the nearest clinic?

[Chief Justice John Roberts]

Justice Ginsburg, JA 242 provides that 25% 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 Theresa, New Mexico, facility is.

[Justice Ruth Bader Ginsburg]

Now that's odd that you point to the New Mexico facility. New Mexico doesn't have any surgical AST requirement and it doesn't have any admitting requirements. 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.

[Dahlia Lithwick]

And then it's Justice Sotomayor tagging in.

[Justice Sonia Sotomayor]

Again, according to you, the slightest health improvement is enough to impose on hundreds of thousands of women, even assuming I accept your argument, which I don't necessarily because it's being challenged, but the slightest benefit is enough to burden the lives of a million women. That's your point.

[Chief Justice John Roberts]

And what Casey said is the substantial obstacle test examines access to abortion. Now if a law.

[Dahlia Lithwick]

And a few minutes later, there's Justice Ruth Bader Ginsburg, all 90 pounds of her back in the ring and she is punching double time.

[Justice Ruth Bader Ginsburg]

I can't imagine what is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved.

[Dahlia Lithwick]

Justice Anthony Kennedy comes back into the argument because he actually wants to talk about the health effects of the Texas law.

[Justice Clarence Thomas]

But I thought an underlying theme, or at least an underlying factual demonstration is that this law has really increased the number of surgical procedures as opposed to medical procedures procedures, and that this may not be medically wise.

[Dahlia Lithwick]

And a few minutes later, it's Justice Stephen Breyer's turn to take a whack at Scott Keller in probably one of the funniest moments of the case.

[Justice Clarence Thomas]

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?

[Chief Justice John Roberts]

Justice Breyer, that is not in the record.

[Justice Clarence Thomas]

Judge Posner then seems to be correct when 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.

[Dahlia Lithwick]

And here's Ruth Bader Ginsburg again.

[Justice Ruth Bader Ginsburg]

As compared to childbirth, many, many much riskier procedure, is it not?

[Chief Justice John Roberts]

Well, the American center for Law and justice and former abortion providers. Amicus briefs dispute that, but regardless, there is evidence.

[Justice Ruth Bader Ginsburg]

Is there really any dispute that childbirth is a much riskier procedure than an early stage abortion?

[Dahlia Lithwick]

Justice Ginsburg Then it's Elena Kagan's turn to ask Scott Keller why it is that Texas feels it needs to regulate abortion for a woman's health sake when colonoscopies and liposuctions have much, much higher complication rates.

[Justice Elena Kagan]

I guess I just want to know why would Texas do that?

[Dahlia Lithwick]

Justice Samuel Alito steps in to help Keller along a little.

[Justice Samuel Alito]

As to rogue facilities, which Justice Kagan just mentioned, one of the amicus briefs cites instance after instance, instance where whole woman's facilities have been cited for really appalling violations when they were inspected, holes in the floor where rats could come in, the lack of any equipment to adequately sterilize instruments. Is that not the case?

[Dahlia Lithwick]

Toward the very end of the argument, Ruth Bader Ginsburg starts to press Keller on whether we shouldn't really worry most about the women, the poor, the rural, the minority woman who will be hardest hit by clinic clothes. Keller tells her this isn't about regulating women's rights to abortion. It's just about regulating doctors and clinics.

[Chief Justice John Roberts]

When a law is regulating women, as it would in the spousal notification provision, that might be different. But when we're talking about doctor and clinic regulations, when the law is going to have a relevant effect, is going to be for every doctor in every clinic, which is precisely why the fifth Circuit noted that that was the proper denominator. All women of Texas reproductive age.

[Dahlia Lithwick]

And Ruth Bader Ginsburg is having absolutely none of that.

[Justice Ruth Bader Ginsburg]

What it's about is that a woman has a fundamental right to make this choice for herself. That's what we start. That's the starting premise. And then this is certainly about Casey made that plain, that the focus is on what woman and it has to be on the segment of women who are affected.

[Dahlia Lithwick]

All of which goes to show that you can put an old veteran ACLU women's rights warrior into a lacy collar, but every once in a while, at least on Ginsburg, it looks like she's wearing a pair of golden gloves. And that is going to do it for another episode of Amicus. As always, we are eager to hear whatever thoughts you have about this week's show. You can share them with [e-mail] we love your letters. Thank you. We also love reading the reviews of Amicus on our itunes page and they're a great way to help. Help other people find out about our show, so if you haven't already left one of your own, there's no time like the present. Search Amicus in the itunes store and click on the Ratings and Reviews tab. Remember that if you've missed any of our past shows, you can always find [e-mail] amicus and we also post transcripts there, but you do have to be a Slate plus member to access them. You can sign up for a free trial membership to slate [e-mail] amicus plus and when you do know that transcripts take a few days to post. This week's excerpts from the Supreme Court's public sessions were provided by Oye, a free law project at the Chicago Kent College of Law, part of the Illinois Institute of Technology. You can find it at oye o y e z.org thank you as always to the Virginia foundation for the Humanities, where our show is taped. Our producer is Tony Fear, Steve Lichtai is our executive producer and Andy Bowers is the chief content officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of [e-mail] Panoply I'm Dahlia Lithwick. We will be back with you soon for another edition of Amicus.