It was supposed to be an epic battle over the fate of Roe v. Wade.
Next week, the Supreme Court hears oral arguments in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s ambitious anti-abortion law HB2. If this law is upheld — a very real possibility in a conservative Supreme Court — Roe v. Wade would have most likely remained alive in name only. States would gain sweeping new power to shut down abortion clinics, so long as they dressed up the laws they enacted to end access to abortion as health regulations.
Except that opponents of abortion no longer have the fifth vote they need to gut Roe. Justice Antonin Scalia’s death means that Roe shall live at least another year. Whether it survives past next year, however, could very well be decided by whoever gets to fill Scalia’s seat.
HB2 is the brainchild of the sophisticated anti-abortion group Americans United for Life (AUL). The law imposes expensive architectural and other requirements on abortion clinics, as well as often-difficult-to-obtain credentialing requirements on abortion providers. If the Supreme Court allows the law to take full effect, at least 32 of the 40 abortion clinics that existed in Texas before it was enacted are expected to shut down.
AUL, moreover, does not hide its goal in pushing such legislation — as ThinkProgress’ Erica Hellerstein reported, AUL functions as a “legislation mill” producing anti-abortion bills that can be copied and enacted in many states. The anti-abortion group brags on their website that they work “through the law and legislative process to one end: Achieving comprehensive legal protection for human life from conception to natural death.” Overruling Roe v. Wade, according to AUL, “can be accomplished through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.”
Just over one week ago, Whole Woman’s Health appeared poised to become AUL’s crowning achievement. Under the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, states may not enact laws that place an “undue burden” a woman’s right to choose abortion — a vague standard that’s proved quite malleable in the hands of abortion opponents. At the same time, states may legitimately regulate all medical clinics, including those that provide abortions, to protect the health of individuals who seek treatment from those clinics. Whole Woman’s Health asks what happens when a state enacts abortion restrictions disguised as health regulations.
The clinic regulations and credentialing requirements at issue in this case will do little, if anything, to advance women’s health. But they make it a whole lot harder to obtain an abortion. Thus, a decision upholding HB2 could potentially return women to a world much like the one that existed prior to Roe. States may not actually be allowed to openly ban abortion after such a decision, but they’d have broad authority to restrict abortion just so long as they are clever enough to devise anti-abortion laws that look like health laws. And if state lawmakers proved inept at this task, groups like AUL would be more than happy to give them a hand.
Now, however, with Scalia’s seat vacant and the Court evenly divided between Democratic and Republican appointees, the likelihood HB2 will be upheld outright is vanishingly small.
No Longer The Man in the Middle
Before Scalia’s unexpected death, all eyes were on Justice Anthony Kennedy, the closest thing the Roberts Court has to a swing vote on abortion. As a general rule, if your plan of attack against an abortion restriction depends on winning Kennedy’s approval, you need a better plan. Prior to HB2, Justice Kennedy considered 21 abortion restrictions as a member of the Supreme Court and allowed 20 of them to take effect. In one case, Kennedy justified an abortion restriction in part because he thought that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”
(It also seems unexceptionable to conclude that some people come to regret their choice to bring a dangerous firearm into their home, yet this insight has not animated Kennedy’s votes in Second Amendment cases.)
Yet, while Kennedy’s opinions reveal an almost visceral revulsion towards abortion, he’s also proved unwilling to overrule Roe outright. Kennedy co-authored the Casey opinion, which limited abortion rights, but which also purported to hold that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”
Thus, before conservatives lost their majority on the Supreme Court, the most important question in Whole Woman’s Health was likely to be which Justice Kennedy shows up to work next week — the one that consistently upholds abortion restrictions or the one that is unwilling to invalidate Roe in its entirety. Kennedy, moreover, gave hope to Team Choice when he cast the fifth vote to stay a lower court order upholding nearly all of HB2.
Now that the Court is evenly divided between liberals and conservatives, Kennedy no longer has the power to drive a nail in Roe’s coffin, but he could still have the power to do considerable damage to the right to choose. The ordinary rule when the Court splits 4–4 is that the lower court’s decision is affirmed and the justices’ decision does not have any precedential value. Because the court of appeals largely upheld HB2, a 4–4 decision in Whole Woman’s Health would allow the Texas law to almost entirely remain in effect — at least until a fifth justice is confirmed to the Court and another abortion case reaches the justices.
Thus, as Cosmopolitan’s Jill Filipovic notes, Scalia’s death may actually make it more likely that Justice Kennedy votes to uphold HB2. “If Scalia were still alive, Kennedy might be choosing between overturning Roe and invalidating the Texas law,” Filipovic writes. Now, however, he doesn’t have to choose between two options that he’s likely to view as undesirable. Rather, if he sides with the conservatives he will leave lower court’s opinion in place without creating a precedent he may later come to regret. “For this particular justice, who seems to find abortion troubling but may not want to see it outlawed wholesale,” Filipovic notes, “that may be a desirable outcome.”
There is, however, some uncertainty about whether Kennedy will have this option. As SCOTUSBlog’s Tom Goldstein notes, the Court’s past practice when a vacancy opened in the middle of a term was to hold cases where the justices split over until the next term, when the open seat presumably would be filled. Given the extraordinary obstructionism Senate Majority Leader Mitch McConnell (R-KY) has already planned against anyone President Obama sends up to fill this seat, it remains to be seen whether the justices will decide to hold over split decisions until next term or simply affirm the case by an evenly divided vote and be done with it.
Which process they choose could matter a great deal in Whole Woman’s Health. Recall that Kennedy provided the fifth vote to stay the lower court’s decision upholding HB2. That order provides that the stay shall last until “the issuance of the judgment of this Court.” Thus, if the Court holds the case over for reargument next term, the stay remains in effect until the Court decides the case, and HB2 does not go into effect. If the Court affirms the lower court by an evenly divided vote, by contrast, that counts as a “judgment” of the Supreme Court, so the clinics most impacted by HB2 will close.
The choice whether to hold the case over could also matter for an entirely different reason. If President Obama (or a similarly minded president) manages to fill Justice Scalia’s seat, one of the first matters taken up by the Court’s new liberal majority would be a major abortion case. That would not only give them the opportunity to strike down HB2, it would also give them the chance to expand a right to choose that has been gradually chipped away after decades of conservative decisions. The vague “undue burden” standard that now controls abortion cases was pushed by abortion opponents including the Reagan Justice Department and AUL itself before it was ultimately adopted by the Supreme Court. A more liberal Court could scrap this standard altogether or, at the very least, clarify it in a way that does not permit anti-abortion judges to take advantage of its vagueness.
Rather than becoming AUL’s crowning achievement, in other words, Whole Woman’s Health could be their most demoralizing defeat.
Yet that outcome depends entirely on who gets to fill Justice Scalia’s seat. If the next justice is more like Scalia, Whole Woman’s Health could still become AUL’s greatest triumph.