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

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.

Main Discussion Points & Insights

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.

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)

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)

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)

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)

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)

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)

Notable Quotes & Memorable Moments

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)

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 |

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.”