On the blistery cold morning of March 2, hundreds gathered at the steps of the U.S. Supreme Court in advance of oral arguments in Whole Woman’s Health v. Hellerstedt, the most significant reproductive rights case in recent history. The crowd sprawled out across the sidewalk and into the street. A man held a baby in one arm and a “Protect Abortion Access” sign in the other. Others held homemade signs, which read “Not Going Back.” An anti-choice crowd had also gathered, all clad in blue, but their presence was drowned out by the sea of purple pro-choice supporters.
Inside the building, the walls vibrated with the sound of the crowd outside chanting “Stop the Sham!” The mood inside the courtroom was more somber as attendees contemplated the gravity of what was at stake in this case. The Justices would not only be determining the constitutionality of HB2, a law passed in Texas that requires clinics to convert into ambulatory care centers, and requires doctors who provide abortion care to have admitting privileges at a nearby hospital, but also whether states can continue to put barriers in place to prevent women from exercising their constitutional right to an abortion. As U.S. Solicitor General Verilli stated at the end of his oral arguments, if the court finds that HB2 should be upheld, what they will really be saying is “that this right exists only in theory and not in fact, going forward.”
At exactly 10am, the Justices entered the courtroom armed with questions for both sides. The seat formerly occupied by Justice Scalia sat noticeably empty and covered in black cloth. Within minutes, it was clear that this was going to be a battle for Justice Kennedy’s vote. Justices Ginsburg, Sotomayer and Kagan pulled no punches in calling out the unfairness in applying certain rules to abortions that aren’t applied to more dangerous procedures like liposuctions and colonoscopies. Justice Breyer further pointed out the hypocrisy in the State’s argument by asking if the State was truly passing these abortion restrictions for health reasons, weren’t they worried that the result of the restrictions was to shut down clinics and cause later-term and more self-induced abortions? Breyer continued, “[s]o if the concern is this tiny risk of dying through complication in a clinic, is this a remedy that will in fact achieve the legislature’s health-saving purpose?”
The arguments in favor of Whole Woman’s Health seemed persuasive at the time but it will be a few months before the Justices release their decision. Walking back down the steps of the Supreme Court and seeing the even larger and more energized crowd of supporters rallying in the cold weather, one thing was clear — no matter what the Justices decide, the right to abortion will not be allowed to be easily taken away.
Chavi Koneru is Policy Analyst for NARAL Pro-Choice North Carolina