In the next few days, the Supreme Court will likely make a decision on Whole Woman’s Health v. Hellerstedt
, the first major abortion case to reach the court in over two decades — but a definitive ruling is far from certain.
This is because the Court is severely limited by its lack of a ninth justice. Justice Antonin Scalia died in February, and Republicans in Congress have declined to consider Obama’s proposed replacement, Merrick Garland. If there is a tie — a serious possibility — the court’s ruling wouldn’t create any lasting precedent for the controversial issue.
Whole Woman’s Health v. Hellerstedt deals with House Bill 2, or HB2, a Texas law requiring abortion clinics to meet the standards of “ambulatory surgical centres,” or hospital facilities that can accommodate low-risk surgery. Abortion doctors also must have admitting privileges to a hospital within 30 miles of their clinic.
The law, which its creators say protects the safety of women seeking abortions, has caused the majority of Texas’ abortion clinics to close. One Texas clinic, Whole Woman’s Health, is fighting the ruling of the Fifth U.S. Circuit Court of Appeals in New Orleans, which upheld the law.
Whole Woman’s Health claims that the law’s restrictions create an “undue burden” on women seeking abortions — a standard established in the 1992 case Planned Parenthood v. Casey. If the court decides that the restrictions do constitute an undue burden, the law will not stand.
Kent Greenfield, a law professor at Boston College Law School, outlined three possible options for the case’s outcome:
- The justices rule 5 to 3 in favour of Whole Woman’s Health, and the law is struck down. Although HB2 is specific to Texas, other courts would begin using the Supreme Court’s ruling to decide similar cases of their own.
- The justices tie 4-4. The ruling of the Fifth Circuit would stand, and HB2 would be upheld — but no lasting precedent would be set.
- The justices remand the case to the Fifth Circuit. In this case, a remand means that the lower court’s ruling does not stand, and the facts of the case would have to be further developed.
“My sense of that case is that it’s unlikely to announce any huge rules of law,” Greenfield said. “My guess is that either it’s going to announce that these restrictions are undue burden, holding in favour of women seeking abortions…or there’s some kind of middle-ground compromise that will be laid down.”
If there is a tie or the case is remanded, Greenfield said, it could return to the Supreme Court later, when there are nine justices.
Greenfield also noted that Justice Anthony Kennedy, the swing vote, had reservations during oral arguments in March about whether the case should be sent back to the lower court for more fact-finding before the Supreme Court makes a decision.
In particular, Kennedy wondered whether the restrictions placed on abortions involving pills would lead to an increase in surgical abortions — a result he said “might not be medically wise.”
“There are a few factual uncertainties in the case,” Greenfield said. “My prediction is that they will reverse and remand.”
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