Stephanie Toti, a lawyer representing Texas abortion clinics, stepped to the podium at the Supreme Court last March to argue against a law that she said would close all but a handful of clinics in the state.
It was her first appearance before the highest court in the land and she was arguing the most important abortion case in two decades.
But as she finished her second sentence, she was interrupted by Justice Ruth Bader Ginsburg, the 83-year-old liberal icon.
Did Toti even have the right to challenge one provision of the law? Ginsburg asked.
Ginsburg most likely believed the answer was that yes, the clinics could challenge Texas. But she wanted Toti to get to swiftly address the issue so she could move on to other attacks on the law.
The question was the first step Ginsburg would take that morning to deftly maneuver the shape of the proceedings and orchestrate an attack on the Texas law while attempting to untangle a host of complicated procedural issues. Win or lose, her questions at oral arguments — showcasing her expertise and punching holes in the case made by Texas Solicitor General Scott Keller defending the law — encouraged supporters of abortion rights who hope that at the very least she mapped out a standard for reviewing abortion restrictions in future cases.
“Justice Ginsburg taught a master class in oral arguments to both draw out admissions from the parties that support her view of the case, and also to address concerns of her colleagues that hadn’t been fully addressed by the written briefs,” said Priscilla J. Smith, of the Program for the Study of Reproductive Justice at Yale Law School.
Ginsburg knows a thing or two about legal strategy, having spent her early years as an attorney plotting to change the legal landscape of the law in the area of gender equality.
Heading into oral arguments, Ginsburg and court watchers knew that three conservative justices had already indicated that the law should be allowed to go into effect. And she knew that if Justice Anthony Kennedy sided with those three conservatives to produce a 4-4 split, abortion rights supporters would suffer a loss because it would automatically uphold a lower court decision in favor of the law.
Because of the procedural issues at stake in the case and questions about the sufficiency of the evidence in the record, it’s not clear where Ginsburg will ultimately come out in the case that is expected to be released this month.
The Texas law requires doctors at clinics to have admitting privileges to a local hospital. A second provision mandates that clinics upgrade their facilities to hospital-like standards. Supporters say its intent is to protect the health of women. The law was passed in the 2013 in the wake of a grisly scandal involving a clinic in Philadelphia.
Opponents of the law call it a sham with no medical justification. They say its real intent is to close clinics without directly challenging the landmark Roe v. Wade opinion legalizing abortion.
A federal appeals court upheld the Texas law in 2015, and last spring a majority of the Supreme Court voted to stay that ruling pending appeal. The four conservative justices at the time: Chief Justice John Roberts, along with Antonin Scalia, Clarence Thomas and Samuel Alito, publicly noted that they would have denied the stay.
The stay order offered a sliver of hope to foes of the law, but it did not guarantee victory.
Argument day
On argument day, Toti dealt with Ginsburg’s question directly. She acknowledged that her opponents thought the admitting privileges provision had already been dealt with in prior litigation. But, she said, new evidence had emerged about the impact of the law, and the justices needed to give the issue a fresh look.
Conservatives then moved to a different line of inquiry: was there enough evidence in the record to link clinic closures to the law?
Or as Chief Justice John Roberts put it:
“What is the evidence in the record that the closures are related to the legislation?”
Ginsburg again stepped and noted that there was direct evidence in the record and Justice Elena Kagan followed suit in a line of questions.
All eyes were on Kennedy, however. He didn’t tip his hand much but brought up the question of whether the case needed to be sent back down for more information on the capacity of the clinics that would remain if the law were to go into effect.
“Would it be A, proper, and B, helpful, for this court to remand for further findings?” he asked.
As Toti answered questions her time was running out and Ginsburg weighed in:
“We have absorbed so much of your time,” on threshold questions, Ginsburg said. Ginsburg asked the Chief if Toti might be granted more time to “address the merits.”
It’s not often that a justice, other than Roberts, initiates such a request. Both sides were granted five extra minutes.
That gave Toti the opportunity to stress that the law would “impose heavy burdens on abortion access that are not medically justified.”
Access to abortion in Texas
Ginsburg also led the liberal onslaught of questions to Keller, who took the podium to defend the law.
Keller, a former clerk for Kennedy, who also has served as legal counsel to Sen. Ted Cruz, is an experienced litigator for Texas though he is only 34.
“Texas acted to improve abortion safety,” Keller said, adding that “abortion is legal and accessible in Texas.”
But Ginsburg cut in.
“Well, how many women are located over 100 miles from the nearest clinic?” she queried.
Keller said that the law “provides that 25 percent of Texas women of reproductive age” are not within 100 miles of a so called Ambulatory Services Clinic.” And then he said that some of those women could access a clinic in Santa Teresa, New Mexico.
Ginsburg pounced.
“That’s odd that you point to the New Mexico facility,” she said, noting that the provisions of the Texas law are not the law in New Mexico.
“So if your argument is right, then New Mexico is not an available way out for Texas,” Ginsburg said.
The liberals on the bench wondered about forcing clinics to upgrade surgical facilities when some abortions are performed via medication. They asked about the medical benefits of the law, the burden on women and the low risk of the procedure.
“As I understand it, this is one of the lowest-risk procedures,” Ginsburg said. She noted that childbirth is considered a “much riskier procedure, is it not?”
When Keller seemed to dispute that, Ginsburg dug in.
“Is there really any dispute that childbirth is a much riskier procedure than an early stage abortion,” she asked, drawing out her words so carefully that some audience members broke into laughter.
Keller referred to amicus briefs that pointed out that abortion complications are underreported.
Keller, took advantage of his extra time to reiterate his main points. He argued that the “right held by women to make that ultimate decision is not burdened in, at a minimum, a large fraction of cases in Texas, when each metropolitan area will still have a clinic.” He said that future challenges targeting specific areas could still be brought to address concerns.
At the end of the day, the case will likely be decided by Kennedy, but Smith was in awe of the prowess of the senior most justice of the liberal wing of the bench.
“Whether or not this case decides the fundamental issue here, which is whether states can restrict abortion to this extent, Justice Ginsburg has laid the ground work for future litigants,” Smith said.
