Scalia Was Sorely Missed in the First Major Abortion Case in a Decade

Nobody can do Scalia like Scalia, but I can’t help imagining what he would say during oral arguments — his particular brand of verbal Italian spice will be sorely missed.

U.S. Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, D.C.

By Cathy Ruse Published on March 13, 2016

If you are a lawyer in Washington, D.C. and if you are willing to stand in the cold for hours, you can get a front-row seat at one of the greatest legal shows in the world — oral arguments before the Supreme Court.

They are among the most highly dramatic and significant American events that most of America will never get a chance to see. There are no cameras in this courtroom.

The recent argument in the first major abortion case in a decade should have been a rollicking legal debate. But the argument in Whole Woman’s Health v. Hellerstedt was, well, a bit dull. It was missing a certain Italian spice. It was missing Scalia.

Most people knew Justice Antonin Scalia from his court opinions, particularly his dissents, which were always compelling, often biting, sometimes downright hilarious. But only a relative and lucky few ever got to watch him live, parrying and thrusting his sharp wit into the soft underbelly of a bad argument.

The Hellerstedt arguments missed him badly. Before the Court was a Texas law requiring abortion practitioners to have admitting privileges at a hospital and requiring clinics to meet the health and safety standards of ambulatory surgical centers (like ophthalmology or dental clinics).

The case was brought by a group of abortion businesses and practitioners who claim the law forced their businesses to close, resulting in an “undue burden” on the right to abortion in Texas.

The stage was set for verbal pyrotechnics, but they never came. The courtroom exchanges were dry. Tedious. They almost seemed to miss the point.

The lawyer representing the abortion businesses said the clinics were forced to close. Chief Justice Roberts and Justice Alito asked for evidence to support her claim.

She had none, beyond timing. The clinics closed around the time the law passed. And then the wagons circled. Justice Kagan said her evidence was just fine. Justice Ginsburg asked the Chief to give her extra time. Justice Sotomayor changed the subject.

This would have gone down much differently if Scalia had been in his seat. Now, nobody can do Scalia like Scalia, but I can’t help imagining that he would have interjected here, saying that the law didn’t mandate the closure of any business. That states set health and safety standards all the time. That you can’t credibly argue the standards are impossible to meet because many clinics are in fact meeting them.

I can imagine him pointing out that new abortion clinics have even opened up since the law was in place, and asking, rhetorically: “Why shouldn’t we draw the inference that the law is a boon to abortion in Texas?”

Justice Scalia might have used the absence of evidence about the reason for closures as an opportunity for some fun speculation. Maybe they didn’t want to spend money on sanitation equipment. Maybe they didn’t like the idea of regular inspections. Maybe they have an irrational fear of fire extinguishers.

Justices Breyer and Sotomayor spent a considerable amount of time anguishing over whether the remaining clinics would have sufficient “capacity” to handle the abortion demand. I have no doubt that Justice Scalia would have raised his voice here, too.

“When did ‘capacity’ become a constitutional issue?” he might have asked. Isn’t it really a market issue? And aren’t the majority of abortions elective, anyway? He might have said it looks more like a business opportunity than a constitutional problem to him. “If some clinics closed, for reasons we can only speculate, isn’t the marketplace wide open for new clinics with better business practices to step in to pick up the slack?”

Finally, to put a fine point on it, he might have added: “If this law results in old unsanitary clinics closing and shiny new well-staffed clinics opening — that’s somehow bad for women? Every dirty old clinic must remain open for a new law to be deemed constitutional?”

These are admittedly feeble attempts to conjure the great man. But now that he is gone, all we are left with is our imagination, as it is difficult to imagine another who could replace him. I am sure that I was not the only lawyer gazing at that black-draped chair, longing for Scalia’s voice.

For so many of us who admired him, Justice Scalia’s death hit hard. It is not just his votes we will miss, or his magnificent written opinions. That Wednesday morning I realized that we might miss him most of all in flesh, at oral argument, verbally stepping into the game and hitting a home run every time we — and the Constitution — needed it.


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  • L Almaraz

    The absence of Scalia appears to be a smattering blow for many who looked to him to uphold a moral consensus in the Supreme Court. But it could be thought of as an opportunity to see God’s hand at work. We have many examples in the Bible where hope appears to be bleak and all appears to be lost. It is then where God’s might is revealed so as to teach us that it is not on man that we should place our hopes, but on the Almighty who is always in charge.

    • autarchical1

      Very well said. The article mourns the loss of an amazing person, perhaps the person who has done more to protect and advance the cause of liberty in the past 30 years than anyone else. So it is appropriate to say, and I’m sure you speak for Justice Scalia too, that we should all take heart that no matter what happens in America or in the world, God is always in charge, and our well being is always only in his hands. Knowing this is not an excuse to disengage, but should be a source of confidence and good humor that transcends circumstances.

      • L Almaraz

        Indeed. God always works through his creation and you are right to point out we should never be passive in confronting the ills of our culture.

  • David Greaves

    I find that the silly rationalizations of of abortion practitioners to be quite hilarious. They are based on convenience type arguments and convenience should never be a leading value. I would never hire an employer who values convenience in the number one spot.

  • daisy37

    “Maybe they have an irrational fear of fire extinguishers”. Hilarious.
    Thank you for your attempts at recreating his intellectual genius.

  • Peggy

    I think you nailed it! Thanks for filling in the blanks.

  • 4lifeandfreedom

    And now we have the CEO of Planned Parenthood, Cecile Richards, campaigning for Hillary Rodham Clinton, without any qualms of interference from those who were recently outraged by the exposed rot behind closed doors of the number one aborticide organization in our United States of America! Certainly, this is outrageous all the way around! Wake up Americans!

  • blfdjlj

    Nope – Scalia’s fraudulent arguments would have been shot down. Clinic shutdown laws posed as “safety” regulations are such a scam that anyone with their head outside the sand will realize it.

    Now, I can’t wait until a liberal feminist replaces Scalia!

  • AudreyII

    Sanitation equipment, inspections, & fire extinguishers? Does anyone think that these are the things that are closing clinics & restricting access to ***a legal procedure***? You left out height of the grass outside, size of janitor closets, width of hallways, admitting privileges, and other ridiculous things that are part of these regulations and which don’t apply to, say, colonoscopy clinics which demonstrably carry more risk.

    The notion that these laws are for anything else but restricting abortion is laughable on its face. If Scalia would have swallowed that nonsense, he really wouldn’t have belonged on that bench.

    • Publius

      It’s this type of spin that Scalia would have demolished handily. The law requires that these abortion mills actually meet the health and safety standards of ambulatory surgical centers, which is good for everyone. Treating an invasive procedure like abortion as a quick, in-office procedure is reckless and foolish. Let the legislatures do their jobs in protecting the people they serve.

      • AudreyII

        For the record, you think Scalia would have bought the claim that these regulations are meant to make abortions safer? Furthermore, do you buy that claim?

        “Spin”, indeed!

    • TerryC

      Why are any of these requirements ridiculous? Other surgical facilities have to meet them. My dentist, plastic surgeon and laser vision centers have to meet regulations. As do colonoscopy clinics, despite what you think. These are primarily required for the safety of the patient. Are women seeking an elective abortion somehow not important enough to be ensured that a surgical procedure they are electing to have performed is done in a safe manner in a medically safe environment? Should they not be ensured that, should unforeseen complications arise, that they can be ensured that their doctor is capable of continuing their care at a certified hospital?

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