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No Matter What SCOTUS Says On Texas Abortion Case, Uncertainty Will Follow

Pro-choice protesters shout across the street to pro-life protesters in front of the U.S. Supreme Court on the anniversary of Roe v. Wade Friday, Jan. 22, 2016. (Photo By Bill Clark/CQ Roll Call)
Pro-choice protesters shout across the street to pro-life protesters in front of the U.S. Supreme Court on the anniversary of Roe v. Wade Friday, Jan. 22, 2016. (Photo By Bill Clark/CQ Roll Call)

The Supreme Court today steps into the national debate about the restrictions state lawmakers can put on abortion clinics, but the two most likely rulings won’t settle the issue nationwide.  

The justices will hear oral arguments in a challenge to a Texas law that regulates the operation of abortion clinics because of what state officials say is a concern for women’s health. The Texas law is similar to those in more than a dozen other states.  

Abortion providers say the law will force so many Texas clinics to shut down that it effectively denies women the right to have an abortion.  

Following conservative Justice Antonin Scalia’s death last month, Texas appears unlikely to win a majority of justices, leaving two likely outcomes: a 4-4 vote that leaves the law in place or a 5-3 ruling that sides with opponents of the law and strikes it down.  

The case is the first substantive one on abortion at the Supreme Court since 2007, and the opinion handed down could have consequences for millions of women in Texas and beyond. The justices could shed light on when state regulations create an undue burden on the constitutional right to an abortion established by the landmark 1973 decision in Roe v. Wade — as well as determine how courts analyze state laws to enforce that standard.  

Yet the outcome of the case, Whole Women’s Health v. Hellerstedt, is expected to leave uncertainty for state lawmakers and room for future legal fights.  

A 5-3 ruling that strikes down the Texas law, even if broadly written to apply nationwide, wouldn’t necessarily apply to similar laws in other states, legal experts say. That ruling would likely still leave room for other state lawmakers to pass health regulations that might meet court approval.  

And a 4-4 vote would leave different standards for abortion clinic regulations in different parts of the country, and leave open the legal question for a court with nine sitting justices.  

If the abortion clinics prevail in a 5-3 decision — Justice Anthony M. Kennedy is thought to be most likely to join liberals in such a majority — state lawmakers and federal judges could find the justices’ opinion a source of guidance.  

But the justices prefer to write opinions narrowly focused only on the case at hand, and such a ruling could deal with the ways the Texas law applies to that state particularly, said Steven D. Schwinn, associate professor of law at The John Marshall Law School in Chicago.  

The justices could focus on the Texas law and how it closes many clinics and leaves rural women with few options, for example, something that might not apply in a more geographically compact state or a state where a similar law closes fewer clinics, Schwinn said.  

Even a broader 5-3 ruling, however, could leave open a chance for states to pass seemingly small health regulations that have a large cumulative effect to find out where courts would draw that “undue burden” threshold, said appellate lawyer Lori Alvino McGill of the Washington lawfirm Wilkinson Walsh and Eskovitz.  

“A win for petitioners here won’t necessarily foreclose the enactment of aggressive but more subtle, incremental regulations in some states,” McGill said.  

The eight justices could also split 4-4, a vote that would leave in place the Texas law while two appeals courts in other parts of the country have struck down similar provisions in other states. That outcome, likely to come as just a one-line order, would also leave in place differing tests judges use to enforce the undue burden standard.  

The Texas law requires abortion clinics to meet standards for ambulatory surgical centers and requires physicians at the facilities to have admissions privileges at a nearby hospital. The U.S. Court of Appeals for the 5th Circuit in New Orleans left the law in place in June, largely relying on the state’s stated legitimate interest in women’s health as enough to uphold the law.  

But the U.S. Court of Appeals for the 7th Circuit in Chicago struck down in November a Wisconsin law from 2013 with a similar admissions privilege provision. That opinion delved into — and soundly rejected — the state’s argument that the law had a legitimate women’s health interest.  

For now, the Texas law is on hold, and some legal experts say that could be a sign of how the case is ultimately decided. The Supreme Court in a 5-4 vote stopped the measures from going into effect pending the outcome of the law. Kennedy joined the liberal wing of the court — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — to put a hold to the law.  

Chief Justice John G. Roberts Jr. and justices Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented against the stay at that time.  

As is often the case, Kennedy is expected to be the deciding vote, either joining the four liberal justices to side with the abortion clinics or joining the three conservatives to deliver a tie. Kennedy co-authored the 1992 Supreme Court ruling that established the undue burden test and is in a position to clarify it now.  

Scalia’s absence limits the possible damage of the case from the perspective of abortion providers. If Scalia were still on the bench, and if Kennedy joined the conservative members of the court in the case, “the conservatives could have set a national binding precedent in an opinion,” McGill said.  




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