JURIST Guest Columnist B. Jessie Hill of Case Western Reserve University School of Law, Judge Ben C. Green Professor of Law and Associate Dean for Academic Affairs, discusses the newest Supreme Court abortion rights case…

Only a few weeks remain in this Supreme Court term, and Whole Woman’s Health v. Hellerstedt has yet to be decided. Is it still likely to be the most important abortion case since Planned Parenthood v. Casey? And what does it mean for abortion restrictions in the rest of the country outside Texas, especially now that the possibility of a 4-4 split looms in the absence of Justice Scalia? The short answer is that the worst-case-scenario for the plaintiffs now appears to be off the table, but beyond that, it’s anyone’s guess.

In Whole Woman’s Health, the Supreme Court is considering the constitutionality of a Texas law that requires abortion clinics to meet the standards that apply to ambulatory surgical centers (ASCs) and requires physicians who perform abortions to have admitting privileges at a local hospital. Because these requirements are, for some clinics, either prohibitively expensive to meet (in the case of the ASC standards), or simply impossible to attain (in the case of admitting privileges), they will shut down almost all of the abortion providers in Texas, likely leaving the state with fewer than 10 clinics, most of them clustered in the larger cities.

At the heart of the case is a dispute between the defendants and the plaintiffs over the application of Planned Parenthood v. Casey ‘s “undue burden” standard for evaluating the constitutionality of abortion restrictions. The ASC and admitting-privileges requirements are justified by the state as advancing the state’s interest in making abortion safer for women. Texas claims that this purpose is legitimate and that the reduction in access to abortion does not rise to the level of an undue burden. The plaintiffs—abortion providers in the state of Texas—argue, by contrast, that these legal mandates have both the purpose and effect of imposing an “undue burden” on abortion access. Central to their argument is the essentially undisputed proposition that these requirements have no, or almost no, actual impact on patient safety while severely limiting abortion access in the state.

Kennedy is Still the Key

The sudden death of Justice Scalia means that it will be virtually impossible to assemble a five-justice majority behind a decision that radically alters the future of abortion rights. Of the eight remaining justices, only Chief Justice Roberts and Justices Thomas and Alito would conceivably stake out such a hardline position against abortion access; the four liberal justices (Justices Ginsburg, Breyer, Sotomayor and Kagan) are all but certain to vote in favor of the plaintiffs on grounds that are broadly protective of abortion rights. Thus, Justice Kennedy’s view will likely determine the outcome. If he decides to side with the liberal wing of the court, this will result in a 5-3 victory for the plaintiffs. On the other hand, if Justice Kennedy chooses to join the more conservative justices in voting to uphold one or both sets of requirements, this would likely create a 4-4 split on one or both issues, thus leaving the Fifth Circuit decision upholding the laws intact but creating no binding precedent.

A couple of other alternatives exist. One is that the court will send the case back to the lower court for further fact-finding. There was some suggestion by Justice Kennedy at oral argument that the record was not sufficiently developed on the impact of the challenged laws. Since the court remanded without deciding Zubik v. Burwell, the Obamacare contraceptive mandate case, it’s possible it might remand here as well. This case is different from Zubik, however. In Zubik, the court sent the case back to the lower courts with directions for the parties to, essentially, try to work out a compromise. The court could have at least thought that it would end up avoiding a divisive ruling or a 4-4 split if a reasonably acceptable solution could be found. At worst, the court was buying itself time. In Whole Woman’s Health, however, there would be little to gain from such a move. Unlike in Zubik, where there is a single regulation and a single defendant on one side (the federal government), there are numerous state laws and numerous plaintiffs litigating the constitutionality of admitting-privileges and ASC requirements. Circuits have split, and there are currently two other certiorari petitions pending, with more undoubtedly to come. The court would only buy itself some time by sending the case back—not open the possibility of a nationwide compromise—and it would not even buy itself very much at that. The court could accomplish the same thing by simply holding the case over to its next term.

Another alternative is that Justice Kennedy does not join either the liberals or the conservatives, but instead writes his own separate opinion, perhaps splitting the difference in some way. In this scenario, it could matter greatly what, exactly, Justice Kennedy says, even though he is writing only for himself, and how his opinion relates to the other Justices’. In other words, lower courts might be left to piece together a binding rationale based on a fragmented set of opinions.

In any case, the upshot is that, as before Justice Scalia’s passing, Justice Kennedy is still the swing vote, and he will decide how and whether this case comes down.

Laws in Other States

Numerous states now have laws like Texas’s, and some of these are currently being litigated. In seven states (Wisconsin, Alabama, Tennessee, Oklahoma, Kansas, Mississippi and Louisiana), litigation over admitting-privileges laws is ongoing. In two of those cases (Wisconsin and Mississippi), certiorari petitions are pending; in the others, the laws have been enjoined while the proceedings play out or the case is stayed awaiting the outcome in Whole Woman’s Health. In all of these cases, the courts could easily assimilate the Supreme Court’s imminent ruling and apply it to the pending cases—assuming, again, that the court issues a clear and precedential ruling.

There are also older laws like Texas’s on the books in some states. The Eighth Circuit upheld Missouri’s surgical-privileges law in 1989, before the Casey decision. Utah’s admitting-privileges requirement, which has been in place for several years, does not appear to have been challenged. Similarly, 22 states currently have ASC-type requirements [PDF] (including Texas), and most of these are currently in effect. Some of these, too, have been litigated and upheld; others have not been challenged.

In the unlikely event that a five-justice majority votes to uphold the constitutionality of the ASC rule, the admitting-privileges requirement, or both, then the laws currently on the books would obviously remain in effect. This is the one scenario that almost certainly will not come to pass, however. If the Court divides 4-4—a somewhat more likely outcome—then the decision will not affect any of the laws or litigation currently pending elsewhere in the country. Thus, although in Texas a large number of clinics would close or remain closed, uncertainty and disagreement about the status of these requirements would continue in the rest of the country at least until another justice is appointed.

If the court holds the Texas law unconstitutional, these older laws that are currently in effect may be in jeopardy. If the court holds that such laws always create an undue burden, for example, this would lead to the conclusion that the laws in other states are unconstitutional as well, and it is likely that they would simply no longer be enforced, much as most states simply ceased enforcing their criminal abortion laws after Roe v. Wade was decided. If the decision in Whole Woman’s Health is more fact-specific, however, it might simply open the door to a new challenge under the standard set forth by the court.

Predictions and their Perils

Aside from the obvious uncertainty brought about by Justice Scalia’s death, there are a few features that make predictions about Whole Woman’s Health and its likely long-term impact particularly difficult. One is that the undue burden inquiry has generally been a fact-intensive one. In putting forth a test that focuses on the lack of health and safety benefits of the law, the plaintiffs have wisely attempted to shift the case’s center of gravity away from questions about geography, demographics and the like. However, some of the questioning at oral argument did focus on such issues, which have often been the basis of lower court decisions. If the court’s ultimate disposition centers on facts peculiar to Texas, it may result in a victory or partial victory for the plaintiffs in Texas that does little for clinics outside that state. In other words, given the extreme nature of the Texas law and its almost unquestionably severe impact on abortion access in the state, Whole Woman’s Health is arguably too easy. A ruling that says, essentially, “If anything is an undue burden, this is it” will not provide much guidance to courts or comfort for clinics in less extreme circumstances. Litigation will continue for some time around the question whether other states’ laws are as bad as Texas’s or as extreme in their impact as Texas’s.

Another feature making this case difficult, of course, is the enigma that is Justice Kennedy. Where, exactly, does he stand on the abortion issue? He has progressively moved to the left in recent years on the issue of gay rights—a fact that may give the plaintiffs hope. But he has been much harder to read on abortion rights. Although Justice Kennedy formed part of the three-justice plurality that saved Roe in Planned Parenthood v. Casey, he voted to uphold the federal Partial-Birth Abortion Ban Act in the Supreme Court’s last major abortion case, Gonzales v. Carhart. Moreover, in that case and others, he has penned language favoring deference to legislatures on disputed questions of medicine and science, which are arguably the sorts of questions at issue in this case.

Nonetheless, it seems to safe to predict there will be some pressure not to allow a 4-4 split, since the issues arising in Whole Woman’s Health extend well beyond Texas. A 4-4 split would mean many cases, currently on hold, would have to remain in limbo until a new justice is appointed, or we would simply have to live with a circuit split.

Then again, since decades of uncertainty over the undue burden standard have already been produced by the Casey decision, that result may not be so unimaginable after all.

B. Jessie Hill is the Judge Ben C. Green Professor of Law and Associate Dean for Academic Affairs at Case Western Reserve University School of Law.

Suggested citation: B. Jessie Hill, After Texas: What’s at Stake for the Rest of the Country in Whole Woman’s Health v. Hellerstedt, JURIST – Forum, June 13, 2016, http://jurist.org/forum/2016/06/bjessie-hill-whole-womans.php.