Will Scalia’s Death Protect Abortion? Deadlock in Texas Case Will Limit Damage

The first major Supreme Court case since Justice Scalia’s death is being argued: Whole Woman’s Health v. Hellerstedt, which could have decimated abortion rights nationwide had he lived, but now will likely end unresolved. Unfortunately, given the battle to appoint Scalia’s replacement, the result may generate more cynicism than anything else.

At issue in the case is Texas’s new requirements for abortion clinics. These requirements have not been shown to have any medical benefit, but they will cause 32 of the state’s 42 clinics to shutter. The question presented is whether, under Roe v. Wade and subsequent precedents like 1992’s Planned Parenthood v. Casey, those requirements place an “undue burden” on a woman seeking an abortion.

Before Justice Scalia died, the case was almost certainly going to go 5-4 one way or the other, with Justice Kennedy providing the swing vote. Based on existing precedent and Justice Kennedy’s own attitude toward abortion, the court would most likely have upheld the regulations, because courts generally defer to legislatures when it comes to facts, and Texas has said these regulations protect women’s health, and so whatever burden they place on women is not undue.

Generally, the court defers to such judgments even though, in this case, there’s not a single reputable doctor who has testified in favor of the rules (even though all of the major U.S. medical associations have filed amicus briefs opposing them). If Texas has adopted junk science, the court may say, that’s its prerogative.

Now, however, the case is likely to be a 4-4 tie, with an outside chance of Justice Kennedy making it 5-3 to strike down the rules. The result would be a mix of good news and bad news, whichever side of the abortion debate you’re on.

On the pro-life side, a tie leaves the lower court’s ruling in place. In this case, that means the Fifth Circuit’s lengthy opinion mostly allowing the regulations to stay in place would cause most of the clinics to close.

On the pro-choice side, a 4-4 split has no precedential value. Other states have been watching this case closely, waiting to see how the court will rule. If it effectively doesn’t rule at all, that leaves this particular question of “undue burden” open, with years more litigation to come.

Also on the pro-choice side, Whole Woman’s Health could have done much more than simply uphold Texas’s regulations. Although Justice Kennedy, based on his past votes, would not vote to overrule Roe v. Wade altogether, he could have provided the fifth vote to continue limiting Roe sharply.

For example, the court might have held that the “undue burden” test sets an extremely high barrier. To pro-choice advocates, forcing women to travel across state lines and be away from their families or jobs for two to three days (because of waiting periods and the like) is, itself, an “undue burden.”

But there’s Supreme Court precedent that seems to cut the other way, holding that economic and temporal burdens are not undue when health is at stake (or when the legislature says it is, anyway). That’s essentially an open question, and the court could have laid it to rest in a way that would have made abortion even harder to access nationwide.

So at the very least, Whole Woman’s Health will now not make things worse for women, which it might very well have done. And there’s a slight chance it may make things better.

Given those parameters, what should court-watchers look for?

First, it’ll be interesting to see if Justice Alito will take on the mantle of Justice Scalia, and ask some of the more probing (or bullying, depending on your point of view) questions from the bench. There’s a reason he was nicknamed “Scalito” during his confirmation battle; his judicial philosophy most resembles that of the late justice, as does his religious background and voting record. Then again, having seen Justice Alito in action many times, his temperament is different. It’s hard to imagine Alito taking the rhetorical gloves off the way Scalia did because his demeanor is a little icier, even more aloof, than Scalia’s.

Still, somebody has ask questions do it, and it won’t be the careful Justice Kennedy, conservative (in the temperamental sense), Chief Justice Roberts, or silent Justice Thomas (who went 10 years without asking a question until this week).

Second, as always, watch Justice Kennedy’s questions. For example, Kennedy might ask a question like “If the Texas legislature decrees that the Earth was created in 4004 B.C.E. (as young-earth creationism holds) and that school curricula should teach accordingly, would courts be bound by that finding? And if not, why here?” Such questions might indicate a willingness not to defer to junk science.

On the other hand, if Justice Kennedy reads court precedent narrowly, and asks plaintiffs to explain why traveling to another city is really such an undue burden, this case will go 4-4.

Or Kennedy might look for a middle way. In the Fifth Circuit opinion, the appeals court noted that the plaintiffs were challenging all of the health regulations, not just the most burdensome ones. In one passage, for example, the court noted that one requirement is to have hand soap available. Surely that does not place an “undue burden” on women. Would it be possible to uphold some regulations and strike down others or to send the case back down for further review? Such questions could signal a middle way.

All this should raise two questions for those who care about our democracy, one of them quite troubling.

First, this case throws the post-Scalia confirmation battle into high relief. If a fifth liberal justice is on the bench, Justice Kennedy is no longer the swing vote. Not only would Texas’s regulations almost surely fail in that case, but the “undue burden” test itself could be revisited, leading to review of waiting periods, consent laws, and other such restrictions. Roe would be safe for years.

Second, and more concerningly, what does all this say about the activity of judges? Part of the reason the “undue burden” test exists is that courts don’t second-guess the motives of legislatures. If they say a rule is to protect health, courts take that claim at face value.

But come on. Obviously, the Republican-led Texas legislature just wants fewer abortions. That’s what they’ve all campaigned on for years. And since they can’t ban the practice outright, they’re doing their best to make it practically impossible to access.

Either they don’t believe that the Constitution has some unwritten “right to privacy” or “substantive due process” in it, and so they think the government can regulate people’s uteruses and sex lives, or they don’t care about any of that legal stuff, and are just anti-abortion for religious reasons. That is blatantly obvious.

The judiciary is meant to be a check on the power of majorities like that in the Texas statehouse to violate the rights of minorities, and it is meant to apply constitutional law, not personal belief. And that, at least on the surface, is what they will do in Whole Woman’s Health.

But as we are now seeing, the process of selecting judges has itself become so politicized, and politicized over this one issue, that the logic now seems reversed. Do conservatives like judges who “strictly interpret the Constitution” for some profound ideological reason, or because they will help prohibit abortion? Certainly when it comes to issues like corporations counting as people, conservatives are no longer quite so literalistic. The storm surrounding the court at present contributes to the cynicism many feel about it.

And at the end of the day, if it’s 4-4, those clinics will still have to close.