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A “view” from the Courtroom: Extra time to weigh a divisive issue

It’s been a week for some unusual occurrences at the Supreme Court. On Monday, Justice Clarence Thomas asked his first questions from the bench in just over ten years. On Tuesday, many of the lights in the Courtroom went out unexpectedly during oral arguments in a criminal case – prompting Chief Justice John G. Roberts, Jr., to quip, “I knew we should have paid that bill.”

Today, the lone case for argument is Whole Women’s Health v. Hellerstedt, the biggest abortion case to come along in years. There will be no questions from Thomas, no outbursts in the Courtroom over one of the nation’s most divisive issues, and nothing more unusual than some extra time added to the session.

At 9:40 a.m., the Justices’ aides are bringing briefs to their bosses’ place at the bench. An aide to Justice Thomas plops the stack of Hellerstedt briefs right in the middle of his work area. With some ninety merits and amicus briefs filed, that makes for a pretty tall stack of color-coded booklets. (It will be several minutes into the argument before Thomas decides to move it.)

Amy Hagstrom Miller, the founder and CEO of Whole Women’s Health, the chain of clinics that have challenged Texas’s measures regulating facilities that perform abortions, is here, seated in the second row of the public gallery.

Nearby, in the public gallery today instead of the bar section, is Steven R. Shapiro, the legal director of the American Civil Liberties Union, which has filed an amicus brief on the clinics’ side.

At 9:50, Valerie Jarrett, a senior advisor to President Barack Obama, and Tina Tchen, an assistant to the president and chief of staff to first lady Michelle Obama, arrive and take seats in the public gallery, too. Jarrett has been present for a number of major arguments during the Obama administration.

Solicitor General Donald B. Verrilli, Jr., who will argue on the side of the clinics, arrives with his team. Verrilli heads over to greet former acting Solicitor General Walter Dellinger.

On the state’s side, Clark D. Forsythe, the acting president and senior counsel of Americans United for Life, an anti-abortion group that has promoted model legislation for the kind of restrictions adopted by Texas, is here.

The counsel table for Texas remains empty until just a few minutes before the argument, when state Attorney General Ken Paxson, a Republican, and Solicitor General Scott A. Keller and their associates arrive. Keller will argue the state’s case, as he did in December for the college affirmative action case in Fisher v. University of Texas at Austin. (And as he will presumably do in April when the Term’s major immigration case, United States v. Texas, is argued. Keller might as well have opened a satellite office here, or at least booked a suite at Extended Stay America.)

The argument gets underway with Stephanie Toti of the Center for Reproductive Rights in New York City representing Whole Women’s Health. But before she gets too far, Justice Ruth Bader Ginsburg interrupts her with a “preliminary question” about claim preclusion. The challenged Texas provisions require that physicians performing abortions have admitting privileges at a nearby hospital and that abortion facilities meet the same standards as ambulatory surgical centers. The admitting-privileges provision was enjoined on its face in an earlier lawsuit.

“That was argued and decided,” Ginsburg said. “Why isn’t it precluded?”

Toti responds that material facts relevant to Whole Women’s Health claims were developed after judgment in the earlier case. But she can’t stop a range of these threshold questions from taking over the bulk of her twenty minutes of argument time.

When the white light on the lectern comes on, signaling five minutes remaining in her time, Toti sends a subtle signal. “I see I’m getting into my rebuttal time,” she says as she tries to answer another aspect of the preliminary question.

Justice Ginsburg comes to her aid.

“You had — we have absorbed so much of your time with the threshold question,” says Ginsburg, who then leans forward a little and turns to the Chief Justice.  “Perhaps you can – can she have some time to address the merits?”

Roberts is agreeable to the motion. “Why don’t you take an extra five minutes, and we’ll be sure
to afford you rebuttal time after that?” he tells Toti.

She thanks him, and begins to argue the merits, that “fundamentally, these laws impose heavy
burdens on abortion access that are not medically justified.  And for that reason, they impose an undue burden on the right to abortion.”

Toti gets not-so-friendly questions from Roberts during this time, and some friendly fire from Justice Sonia Sotomayor about abortion procedures.

When Toti’s red light comes on, Sotomayor asks, “If the Chief may permit me to finish my two-part question?”

“Sure,” he says agreeably. After a couple of more minutes of back-and-forth between Sotomayor and Toti, Roberts seeks to end the discussion with his customary, “Thank you, counsel.”

I say “seeks” because he is unsuccessful. Sotomayor asks another question about so-called medical abortions, which involves taking abortion pills instead of having a surgical procedure.

Finally, Solicitor General Verrilli takes to the lectern. Speaking at a rapid clip, he starts in immediately on the merits and the stakes of the case.

“This law closes most abortion facilities in the state, puts extreme stress on the few facilities
that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state,” he says.

After being peppered with questions during his ten minutes of time, Verrilli uses a rhetorical tactic he often employs in the biggest cases – a plea to not be interrupted.

“In the short time I have remaining, I’d like to finish with one point, if I could,” he says. “I think, ultimately, the question before you is whether the right here is going to retain real substance, and whether the balance struck in Casey still holds.”

“If that right still does retain real substance, then this law cannot stand,” Verrilli continues. “The burdens it imposes, the obstacles, are far beyond anything that this Court has countenanced. And the justification for it is far weaker than anything that this Court has countenanced. It is an undue burden. It is the definition of an undue burden.”

When Keller steps to the lectern for Texas, the Chief Justice tells him that he’ll get an extra eight minutes, which is “roughly” what the other side got.

“An extra thank you, Mr. Chief Justice,” Keller says.

Texas acted to improve abortion safety, he says, adding that “abortion is legal and accessible in Texas. All the Texas metropolitan areas that have abortion clinics today will have open clinics if the Court affirms, and that includes the six most populous areas of Texas.”

He will be peppered with questions, especially from the Court’s more liberal members, about the distances women must travel in some parts of the state to reach an abortion facility; about the relative safety of abortion compared with childbirth, liposuction, colonoscopies, and other procedures; and complication rates.

At one point late in the argument, as Keller is answering questions from other members of the Court, Justices Thomas and Stephen G. Breyer engage in their own conversation about the case. At times, Thomas’s voice is loud enough to be heard in the press section.

(And speaking of sound carrying some distance, reporters who are seated near the Courtroom windows, which look out on an interior courtyard, say they can hear the loud demonstrations going on in front of the court, by partisans on both sides of the debate.)

As Keller’s time winds down, it is Justice Ginsburg who muscles past the Chief Justice’s attempts to close out the Texas solicitor general’s time. She asks a few questions about Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 decision that reaffirmed the abortion right recognized in 1973’s Roe v. Wade.

Finally, after an answer by Keller, Roberts asserts himself to say, louder than usual, “Thank you, counsel.”

Toti then uses most or all of her five minutes of rebuttal time, and the case is submitted at 11:28 a.m.

For a Court still getting used to an eight-member line-up, the public portion of an unusual week had come to an end.

Recommended Citation: Mark Walsh, A “view” from the Courtroom: Extra time to weigh a divisive issue, SCOTUSblog (Mar. 2, 2016, 3:17 PM),