The two sides arguing a blockbuster Supreme Court abortion case will walk into the courtroom Wednesday knowing that the debate will have the potential to shape a woman’s access to the procedure for a generation or longer. But the death of Justice Antonin Scalia almost guarantees that conservatives will not be able to issue a majority opinion that would have given states nationwide the freedom to restrict abortion as they pleased — as was the fear of abortion rights proponents when the court accepted the case.
In the case, Whole Woman’s Health v. Hellerstedt, pro-choice forces are asking the court to strike down a Texas law mandating myriad restrictions that have a closed a large swath of its clinics can still score a victory by winning over Justice Anthony Kennedy to their side and stemming the tide of abortion restrictions passed in red states in recent years.
The lack of Scalia’s ninth vote — one that certainly would have favored the law’s defenders — blunts the potential impact of even an outcome that would amount to a loss for abortion rights activists.
“The main difference that it makes that Scalia is gone is that it takes the worst case scenario for the plaintiffs off the table,” said Jessie Hill, a professor at Case Western Reserve University School of Law, who filed an amicus brief supporting the clinics.
The worst case scenario for the challengers would have been a nationally-applicable ruling that would have given states limitless discretion to restrict abortion access. That kind of decision may not have explicitly overturned Roe v. Wade, but instead make it toothless in states led by anti-abortion legislators. It is unthinkable that any of the four liberal justices would sign on to a decision like that, so abortion rights, at least in some states, will remain intact no matter what the court ultimately decides.
The essential strategy both sides are pursuing remains the same since before Scalia’s death. Kennedy was and still is the swing vote, and his murky record on abortion makes him somewhat of a puzzle to predict.
“Our strategy hasn’t changed,” Center for Reproductive Rights attorney Stephanie Toti, who will be participating in oral arguments, told reporters on a conference call last week.
“All along it’s been our goal to demonstrate to the court that these laws are sham, that their goal is not to promote women’s health but instead to restrict access to safe abortion care,” she said.
She will be arguing on behalf of Texas’ clinics, who brought the case against the 2013 Texas omnibus law. The legislation — which famously was filibustered by Wendy Davis before ultimately passing in an emergency session — placed a number of restriction on clinics known in abortion rights circle as “TRAP” laws (standing for “Targeted Regulation of Abortion Providers” ) because they impose costly and medically unnecessary standards on clinics that often force them to close. Texas’ restrictions range from the width of the hallways to requiring providers to have admitting privileges at a local hospital, and are responsible for shuttering more than half of clinics in the state.
The challengers are arguing that the law puts an undue burden on a woman’s right to an abortion, violating the Supreme Court decision that affirmed Roe v. Wade.
But even if the challengers are unsuccessful, the best anti-abortion activists can hope for is 4-4 tie, which means the lower court’s decision stands and itself has no national precedent. That situation would still be devastating for clinics in Texas, as well as other states covered by the 5th U.S. Circuit Court of Appeals, which has repeatedly upheld the Texas legislation and other anti-abortion laws. But it would not set the standard for courts in other parts of the country where these laws are being passed. A 7th U.S. Circuit Court of Appeals decision that struck down a Wisconsin law similar to some of the Texas provisions would still stand, for instance.
The challengers will also face a Supreme Court hearing Wednesday that will likely be a little less hostile, without Scalia on the bench to badger them
“You don’t get his sarcastic, targeted, caustic questions,” said David Cohen, a law professor at Drexel University, who is also supporting the challengers in the case.
“Certainly for the lawyer who is arguing it on behalf of the clinics, it will be very nice not to have to face Scalia questions,” he said.
But that still leaves them with the challenge of Kennedy. On the one hand, Kennedy signed on to the 1992 compromise decision Planned Parenthood v. Casey which upheld Roe v. Wade while outlining vaguely how a state is allowed to restrict abortion access. The ambiguity of those guidelines now is at the center of Whole Woman’s Health.
On the other hand, Kennedy has been very reluctant to strike down abortion restrictions since Casey, which only invalidated one of the provisions being challenged — that a woman was required to tell her spouse that she was seeking an abortion.
“To the extent that he’s a swing vote on abortion, it’s not a huge swing vote because he has only found one to be unconstitutional,” Cohen said.
(One good sign for the challengers is that when Kennedy did break his 13-year streak of showing deference to abortion restrictions, it was to temporarily halt a portion of the Texas law while the full case was pending).
Furthermore, Kennedy also authored the majority opinion in 2007’s Gonzalez v. Carhart, which upheld the so-called partial birth abortion ban, and gave states a wide latitude of discretion when it came to determining the medical necessity of abortion regulations.
“He was persuaded that the practice of partial birth abortion was reprehensible and that medical evidence of a so-called necessity for it was not overwhelming to say the least. And I think we have the same kind of record here,” said Steven Aden, senior counsel with Alliance Defending Freedom, who worked on a brief supporting Texas.
In the opinion, Kennedy described in graphic detail the procedure, while writing that women who undergo abortion experience “regret,” “grief” and “sorrow” — even though at least one study suggests a vast majority of abortion patients never regret undergoing the procedure.
A decision Kennedy authored much more recently, however — and one not about abortion, but about gay marriage — set up an opening for abortion rights proponents. In 2015’s Obergefell v Hodges, Kennedy stressed that excluding gay couples from marriage demeans their dignity, an argument now being repurposed for abortion rights.
“The concept of dignity is making a big comeback in American jurisprudence. We tend to think of abortion rights as just being privacy, but I think the strategy is going to be to build on Obergefell, where dignity is raised,” said Carol Sanger, a law professor at Columbia University. “So you have to say, how is dignity implicated in an abortion case? Well, it is taking away from someone’s dignity if they can’t access the rights to which they are entitled.”