The abortion debate is returning to a recast Supreme Court that now may be tilted against the restrictive Texas law in question.
And the resolution probably all comes down, once more, to 79-year-old Justice Anthony Kennedy.
In a highly anticipated, hour-long oral argument set for Wednesday morning, the court will consider a challenge to a 2013 Texas law governing abortion clinics. Whatever the law’s intent, it effectively restricts abortion providers and hinders women seeking to end their pregnancies.
The late Justice Antonin Scalia almost certainly would have voted to uphold the law. With his death, the high court’s eight remaining justices could end up tied, an outcome that would keep the law in effect, or they could be stacked, ever so slightly, in favor of overturning the law, ruling for the abortion-providing clinics that have challenged the restrictions.
Predicting Kennedy's vote is tricky. In 2007, he wrote the opinion upholding a federal ban on so-called partial-birth abortions. But in 1992, he joined a ruling restricting how a state can regulate abortion clinics, and some close court-watchers predict he will do so again.
“The big question is whether Justice Kennedy will hold the line,” attorney and Supreme Court practitioner Lori Alvino McGill said. She said she thinks Kennedy will find the Texas law imposes an undue burden on women.
At the same Georgetown University Law Center briefing, attorney and SCOTUSblog founder Tom Goldstein agreed that “the wind is in the sails” of those opposing the Texas law.
The Texas requirements constitute substantial obstacles for women seeking abortions and impose an undue burden on their due process rights.
U.S. Solicitor General Donald Verrilli, Jr.
Still, with Scalia now gone, the dynamics of the court could shift. This case, now called Whole Woman’s Health v. Hellerstedt, marks the first time in nine years that the Supreme Court has directly considered an abortion law. With other states, including Florida and South Carolina, adopting laws similar to those in Texas, all sides remain fully mobilized until a decision is rendered.
“Our strategy hasn’t changed,” Center for Reproductive Rights attorney Stephanie Toti, who will be arguing the case, said when asked about the impact of Scalia’s death.
Whole Woman’s Health, the organization whose name leads the legal challenge, operates abortion-providing clinics in Fort Worth, San Antonio and McAllen, a border city about 150 miles south of Corpus Christi. Their opposite number in the Supreme Court case, Dr. John Hellerstedt, is the commissioner of the Texas Department of State Health Services.
Hellerstedt’s agency administers the requirements imposed by Texas legislators through what was called House Bill 2. One provision, not challenged before the Supreme Court, bans abortions after 20 weeks. Another provision, which is challenged, requires abortion clinics to meet the same standards as ambulatory surgical centers. Standards range from a minimum square-footage requirement to rules covering plumbing, heating, lighting and ventilation.
Another challenged provision requires doctors performing abortions to have admitting privileges at a hospital within 30 miles.
“The Texas Legislature passed HB2 to provide abortion patients with ‘the highest standard of health care,’ ” Texas Solicitor General Scott A. Keller asserted in the state’s brief.
The bill’s supporters often embraced broader moral justifications, with Sen. Dan Patrick, R-Houston, saying at one point “It’s about taking the life of an innocent baby” and at another point asking his colleagues, “How would God vote tonight?”
Underscoring the deeply personal stakes, 112 female lawyers who had abortions went public in a brief opposing the Texas law, while 3,348 women who said they were “injured by abortion” joined a brief supporting the Texas restrictions.
“At the time, I did not have the mental, emotional, or perhaps most importantly, economic resources to have a child,” one unnamed graduate of Yale Law School stated in the opponents’ brief, adding that her legal career “would have been impossible if I became a mother before I was ready.”
“I didn’t know that depression and my inability to ever have children again was going to be the consequences,” a Texas resident named Kellie Roenker countered in the brief for supporters of the law.
Other abortion opponents were denied their request to file a brief on behalf of “all unborn persons.”
For the three female and five male Supreme Court justices, now evenly divided between Republican and Democratic appointees, the relevant question is how the Texas law fares when scrutinized through the lens of the 1992 precedent.
In that earlier case, arising from Pennsylvania, Kennedy joined the opinion that states can regulate abortion but they cannot impose “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” This is also called the “undue burden” test.
Kennedy and conservative Justice Clarence Thomas, an inveterate abortion opponent, are the only still-serving justices who took part in the 1992 Pennsylvania case.
Pitching their argument toward Kennedy’s frequency, attorneys for Whole Woman’s Health say the Texas law fails the undue burden test because it “would close more than 75 percent of Texas abortion facilities and deter new ones from opening.” Prior to 2013, more than 40 licensed abortion clinics operated in Texas.
With many of the clinics closing, an estimated 750,000 Texas women of child-bearing age would live more than 200 miles from an abortion provider if the law is upheld.
“Texas women would face higher health risks associated with increased delays in seeking early abortion care,” a brief filed by U.S. Solicitor General Donald Verrilli, Jr. stated.
A lower appeals court upheld the Texas law. If the Supreme Court ties 4-4, this earlier ruling would stand and the Texas law would survive but no national precedent would be set.
Conceivably, rather than deadlocking, the justices could also choose to have the case re-argued once Scalia’s seat is filled and the court is back to its full complement of nine members.