Today the Supreme Court will hear oral arguments on the biggest challenge to abortion rights since 2007. In Whole Woman’s Health v. Hellerstedt, the justices will consider whether to strike down a Texas law, HB2, that would leave the state with only nine or 10 clinics, and not a single abortion provider west of San Antonio.
Even before the death of Justice Antonin Scalia, one of the court’s must outspoken conservatives, all eyes were on swing vote Justice Anthony Kennedy, to whom it will almost definitely fall to decide the case. With the court down a vote, however, the on-the-ground implications of Kennedy’s choice have become more complex, and more difficult to game out in advance. The case hinges on the concept of an “undue burden” on the access to abortion—a standard that Kennedy co-authored in Planned Parenthood v. Casey in 1992, and which critics say he would rob of all meaning if he doesn’t apply it to Texas’s draconian law.
If Kennedy sides with the court’s four liberal justices in declaring HB2 a bridge too far, the resulting 5-3 decision will set a precedent that could make abortion easier to access for women not just in Texas but across the country. If Kennedy sides with his three remaining conservative colleagues, however, the 4-4 tie won’t have precedential power. An even split would reaffirm the lower court’s decision, which upheld the Texas law, and, more broadly speaking, would leave the right to choose in the hands of the appellate courts. As Republicans in Congress vow to stop the president from appointing Scalia’s successor, here’s what the machinations of a diminished and divided court could mean for women across America.
If Kennedy sides with the conservatives:
Texas had more than 40 abortion clinics before HB2 passed in 2013. A provision of the law that requires abortion providers to have admitting privileges at nearby hospitals—a technicality that many hospitals won’t confer on abortion providers, for religious reasons or for fear of controversy—sliced that number down to 19. So far, the final piece of HB2 has been stayed pending the court’s decision; it would require clinics to rebuild themselves as high-tech ambulatory surgical centers, spending millions of dollars on unnecessary remodeling even though abortion is an extremely safe and straightforward procedure, and would force another nine or 10 clinics to close. Women’s advocates classify both of these provisions as “targeted regulation of abortion providers,” or “TRAP laws,” which purport to protect women’s health, but are actually designed to make abortion more difficult to provide and access.
The clinics that have hung on in Texas are bracing themselves for an onslaught that they don’t have the resources to handle. On a press call with the Center for Reproductive Rights in February, Amy Hagstrom Miller, CEO of the reproductive healthcare provider Whole Woman’s Health and one of the plaintiffs in the Supreme Court case, described wait times of 20 to 30 days before women can even make an appointment at clinics in Dallas-Forth Worth and Austin, Texas. Inevitably, that pushes some women over the 20-week line, after which abortion becomes illegal in Texas. “We have women who call in and say, ‘Can you teach me how to do my own abortion with medications I might have in my cabinet, or cleaning products I might have under my sink’” because they can’t make the 200 or 300-mile drive to the clinic, said Hagstrom Miller.
Abortion access is also precarious in the other states in the Fifth Circuit. The court has previously struck down an admitting-privileges law that would have forced the last remaining clinic in Mississippi to close, but now it’s unclear how the judges will rule on a similar law in Louisiana, which could shutter four of that state’s five clinics. Meanwhile, a similar appeal is working its way up through the Eleventh Circuit in Alabama.
A tie at the Supreme Court wouldn’t directly impact any of these cases, since the Fifth Circuit decision it would reaffirm only applied to Texas. Some legal pundits have hypothesized that a 4-4 split would embolden anti-abortion legislators to push ever-harsher restrictions, though, as Leslie McGorman of NARAL Pro-Choice America told me, “that door is pretty well open already.” (Tom Goldstein of SCOTUSblog lays out the possibility that a 4-4 tie vote will lead to reargument of the case if and when a new justice is appointed, rather than reaffirmance of the lower court’s decision.)
Until a ninth justice joins the bench and another abortion case works its way upwards, a 4-4 split would leave one of women’s fundamental civil rights unequally protected in different parts of the country. As Ian Millhiser succinctly put it at ThinkProgress, “[T]he fate of the right to choose would rest upon which federal appellate circuit a woman happened to reside in. Women in fairly liberal circuits would likely continue to enjoy the same rights they enjoy under existing precedents, while women in conservative circuits could see their right shrink to virtual nothingness.”
If Kennedy sides with the liberals:
A liberal win in the Texas case would remove two of the anti-abortion right’s most potent cards—admitting-privileges requirements and laws that force clinics to remodel themselves as Ambulatory Surgical Centers—from its deck of political tricks. Of course, depending on the details of the court’s decision, they could reassert the substance of the “undue burden” standard to some degree while leaving openings for conservatives to keep trying to stretch it. As NARAL’s McGorman points out, “There are other risks; there are other types of TRAP laws. There’s an appetite by anti-choice politicians and organizations to ban abortion in any way they can, because they know they can’t ban it outright… Certainly, there’s some fear that a state like Texas may be relentless on that front.”
Still, in states like Mississippi and Louisiana, a 5-3 decision would almost certainly end the threat to abortion currently posed by laws that look a lot like HB2. “That would be a huge victory, with an impact not only in Texas, but in many of these states where similar issues are being litigated,” David Gans of the Constitutional Accountability Center told me. “It would be an important statement to legislatures considering other measures to deny women their constitutional right to abortion that courts are going to take these laws seriously and carefully review them to make sure, if you say this law has a health justification, that it actually has one.”
In Texas, the remaining 19 clinics would be able to keep operating. Some of the clinics that have closed their doors might even reopen them, though, as Hagstrom Miller has told the AP, it might be too late or too expensive for many. Even if the court reaffirms the right to abortion in the Texas case, it probably won’t fully restore the state of women’s rights before the current wave of TRAP laws began less than a decade ago. And it definitely won’t turn back the clock in the lives of the many women who haven’t been able to access an abortion when they truly needed one.