A short-handed Supreme Court heard opening arguments on Wednesday in a case that could make it much easier for states to impose stringent rules on abortion clinics.
The court will almost certainly fail to set a nationwide restrictive precedent in the wake of Antonin Scalia’s death, according to observers. But it might either keep alive Whole Woman’s Health v. Hellerstedt or uphold a precedent that would impact clinics in Texas, Arkansas and Louisiana.
With all four liberal justices strongly opposing the law, and only three conservatives seeming in favor of it, the outcome hinges on how conservative Justice Anthony Kennedy will vote.
The New York Times, USA Today, MSNBC, The Washington Post, and Politico all reported that Kennedy may be leaning toward asking a lower court to do more fact-finding. Politico and The Post, meanwhile, noted that Kennedy also seemed to question if the law fails the “undue burden test,” as the Justice put it on Tuesday.
The “undue burden test” refers to a 1992 Supreme Court decision that banned “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” Kennedy was one of the authors of that decision, Politico noted.
Whole Woman’s Health v. Hellerstedt centers around part of a law passed by Texas in 2013—the language forcing abortion clinics in the state to meet standards applied to “ambulatory surgical centers,” and other regulations that require abortion-performing doctors to have admitting privileges at local hospitals.
If Kennedy remands the case back to a lower court, it will be for the body to hear more evidence on whether the law has actually forced Texas abortion clinics to close.
It would also probably split the court in a 4-4 vote. The move would either uphold an appellate court’s earlier ruling in favor of the law, or lead to SCOTUS to decide to wait until a ninth justice is seated before proceeding. The latter seems logical if the conservative wing of the court coalesces around the idea of sending the case back down the judiciary system.
If a tie means that the appellate decision is upheld, the Texas law would apply in Texas, Mississippi, and Louisiana—the states that comprise the Fifth Circuit Court of Appeals.
The New York Times said that if the law fully takes effect, it would “drive down the number of abortion clinics in Texas to about 10, from roughly 40.”
