Supreme Court Hears Texas Abortion Case, Temporarily Blocks Louisiana Law

This week the Supreme Court heard arguments in a challenge to a recent Texas law limiting where abortions could be conducted, and then temporarily blocked a Louisiana law which is similar in structure until a final ruling can be made.  Given the vacancy on the High Court left by Justice Antonin Scalia’s passing last month, there is a chance the Texas abortion case will need to be re-heard after a ninth Justice is formally appointed.

Justices Hear Arguments in Texas Abortion Case

The eight Justices of the Supreme Court continued to work through their scheduled docket despite the vacancy, and heard arguments in a constitutional challenge to a recent Texas abortion law.  Plaintiffs in Whole Woman’s Health v Hellerstedt challenged a recent Texas law which closed a number of abortion clinics by increasing the medical standards that the facilities and the doctors must satisfy in order to continue performing abortions in the state.  With the new law in place, the number of legal abortion clinics in Texas reduced from more than 40 to around 10 across the entire state, and the Whole Woman’s Health case asks the Court to decide if the legislation places an “undue burden” by arguably enforcing unnecessary health regulations which were designed to make it more difficult for women in the state to legally get abortions.

Although the Supreme Court is without a replacement for the recently deceased Justice Scalia, the remaining Justices elected to hear the Texas abortion case as planned despite the possibility of a 4 -4 split which would likely force the case to be re-argued when a 9th Justice is appointed.  During oral arguments last week, Texas Solicitor General Scott Keller was aggressively questioned by the Court’s liberal bloc, facing the most intense scrutiny from the three female Justices, Ruth Bader Ginsberg, Elena Kagan, and Sonia Sotomayor.  The Liberal Justices directed pointed questions about the effect the law would have on poor women who do not live close to one of the 10 clinics which would remain if the legislation is approved.

Of particular interests to the Justices were statistics which indicate close to 1,000,000 women would find themselves more than 150 miles from an acceptable abortion clinic in Texas.  Justice Ginsberg seemed critical of the Texas medical standards which required upgrades to surgical centers when some procedures do not require surgery in order to complete, and Justice Sotomayor challenged the benefits of the enhanced medical standards which come of the cost of a potentially substantial burden to a million women.   Most critically to the outcome of the case, Justice Anthony Kennedy joined the concerned voices by suggesting the possibility that women would seek out more dangerous procedures in an effort to circumvent the Texas abortion law.

Justice Kennedy a Likely Swing Vote

As has been the case in many of the recent Supreme Court decisions, Justice Anthony Kennedy will be an unknown swing vote who will likely decide the immediate fate of the legislation.  Unlike other recent cases, however, Justice Kennedy’s vote will either determine the ultimate fate of Texas’s law or defer the case for a likely re-hearing at a later date.  Given the politics of the other seven Justices on the bench, there are probably four votes fully against the law and three which are more willing to allow Texas the latitude to close centers which it deems medically unsafe.  If Kennedy sides with the Liberal wing of the court, then the Texas law will be overturned in a 5 – 3 decision, but should he side with the three remaining Conservatives then the case will end in a 4 – 4 tie.

In the event of a tie, the Court will likely re-hear the case at a future date when Justice Scalia’s replacement is formally appointed to the bench.  Given the political uncertainty about the Senate’s response to a potential appointee from President Obama, the Court could be without a Justice until a new President takes office and makes their selection.  The process could take up to a year or more, which means if Kennedy and the Conservative Justices support the Texas legislation the issue could be left open for an extended period of time.

Louisiana Abortion Law Blocked by Justices

After hearing arguments in the Texas abortion case, the Supreme Court blocked a similar piece of legislation from Louisiana.  The Louisiana law, which was allowed to go into effect by the United States Court of Appeals of the Fifth Circuit, only allows physicians who have admitting privileges at a nearby hospital to perform abortions and, like the Texas law, will close several clinics in the state.  As it did with the Texas law, the Supreme Court overruled the Fifth Circuit and blocked the Louisiana abortion legislation from going into effect until the Justices settled the issue.

The ruling on Texas’s law is a critical step in abortion jurisprudence because Conservative groups across the US have cited the need for improved medical standards in abortion clinics to create legislation which limits the availability of facilities, and, in turn, likely limits abortion.  The Justices will likely issue a decision sometime in June or July.

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