Oral arguments in the case that I described as the biggest abortion rights case of our lifetime begin on March 2. The recent death of Justice Antonin Scalia may have just changed the game, and radically.
As a recap, Whole Woman’s Health v. Hellerstedt (formerly known as Whole Woman’s Health v. Cole) takes up the question of Texas’ HB2, a so-called TRAP law passed in 2013 that forces abortion clinics to meet unnecessary, costly space and hospital-admitting requirements with the intention of shutting them down. If the Court upholds HB2, that would affirm the constitutionality of TRAP laws like HB2 and even other regulations that severely limit access to abortion.
In some ways, the vacancy in the Court is good news for abortion-rights supporters. Before Scalia’s death, the worst-case scenario would be a 5-4 ruling in favor of the Texas law. Now, because the Court is down one very conservative vote, that worst-case scenario is a 4-4 decision, with swing voter Justice Anthony Kennedy siding with Texas.
In the case of a tie, the 5th Circuit Court of Appeals ruling on HB2 will stand, which means that access to abortion in Texas will continue to be extremely limited. The Texas Tribune reported on that decision from last summer:
In an opinion issued June 9, a three-judge panel of the appellate court ruled that the state’s requirement that abortion clinics meet ambulatory surgical center standards—which include minimum sizes for rooms and doorways, pipelines for anesthesia and other infrastructure—was constitutional because it did not impose an undue burden on a "large fraction" of Texas women seeking abortions.
Only a handful of Texas abortion clinics—all in major metropolitan areas—meet those standards. As of last week, there were 19 abortion providers performing abortions in Texas.
The decision made exceptions for one clinic in McAllen, Texas. But for most people in the state, and also in Louisiana and Mississippi (states also governed by the 5th Circuit Court of Appeals), a Supreme Court tie would be bad news for abortion access.
In the event of a Supreme Court tie in Whole Woman’s Health Court, it is possible that the high court might revisit the case after Scalia is replaced. This would likely be very far down the road.
The best-case scenario remains the same as it was before Scalia’s death: Kennedy sides with the more liberal judges. And depending on how that decision is written, a ruling in favor of the plaintiff could render TRAP laws nationally unconstitutional or offer a more limited interpretation that changes the landscape of abortion restrictions.