What to Expect for Texas' Upcoming Abortion Case in a Post-Scalia Court

The first place the mind wandered following the death of Supreme Court Associate Justice Antonin Scalia was, for a lot of people, conspiracy. Even the Observer was not immune. The second obvious place, especially for those who live in Texas, was the effect the jurist's death might have on Whole Woman’s Health v. Hellerstedt, the case that was set to decide the final fate of House Bill 2, the 2013-passed Texas law that, if fully enforced, will leave less than 10 abortion-providing health clinics in the state open.

Whole Woman’s Health v. Hellerstedt is slated to be heard Wednesday, March 2. It is impossible that Scalia's replacement will have been confirmed by that date. 

The plaintiffs in the case argue that HB 2's requirement that all Texas health clinics that provide abortion be certified as ambulatory surgical centers — basically mini hospitals — places an undue burden on women seeking abortion, many of whom will be forced to travel 200 miles-plus to terminate a pregnancy. The state argues that the ASC requirement is only meant to ensure the safety of women seeking abortions.

President Obama said Tuesday that he will nominate a new candidate for the court, but the chances of that nominee getting confirmed by a staunchly oppositional senate before he leaves office are low. The chances that it happens in two weeks are zero. 

So what then? Can a Justice show up late, miss the arguments and still make a ruling? 

The Supreme Court does not require that justices voting on any given decision have been present for the oral arguments in that case. When Chief Justice William Rehnquist missed time in 2004 after an operation, his work-from-home plan — which could've included voting, if necessary — was approved and did not violate any court rules. Should Rehnquist have decided to cast a vote or write an opinion, he could've done so with the aid of transcripts or clerk-prepared case summaries. But he had the job, and that makes a big difference.  Earlier in Rehnquist's career, he recused himself from Eisenstadt v. Baird  — a case that allowed unmarried couples access to birth control — because he was confirmed between the oral arguments in the case and the court issuing its opinion. 

So based on that precedent, it looks like Scalia's seat will be empty when the case is heard. To figure out how the ruling will work out, it's helpful to look at a recent example when a Justice is missing.   
 
Associate Justice Elena Kagan has recused herself from several cases that she participated in during her time as solicitor general. In one of those cases, Fisher v. University of Texas — the recent University of Texas affirmative action case — Kagan's absence contributed to the court initially sending the case back down to the 5th Circuit for a more narrow review. The case was heard again by the Supreme Court on December 9, and the final decision in the case will be made by a now seven-judge panel, with Anthony Kennedy now likely serving as the swing vote.  (With Scalia, the case was seemingly set up to have four votes for Fisher and three votes for the school, with Kennedy potentially forcing a tie.)

Whole Woman’s Health v. Hellerstedt has a similar set up. Four justices — Kagan, Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer — will likely vote to strike down the portion of the Texas law that is still being argued over. Three justices — Clarence Thomas, Samuel Alito and Chief Justice John Roberts — will vote to uphold the law in its entirety. Kennedy, as he was expected to be, will be the swing vote — just like he was in 1992's Planned Parenthood v. Casey, the last major abortion case decided by the court.

Casey is the case that established the undue burden standard, the idea that states can limit abortion, as long as the limits imposed do not create too high of a hurdle for women seeking an abortion. In Casey's case, that meant the state of Pennsylvania could not require that married women seeking an abortion inform their husbands of their choice to do so. In Whole Woman’s Health v. Hellerstedt, the court will be charged with determining whether forcing women in the Rio Grande Valley to drive to San Antonio, or women in Abilene to drive to Fort Worth, to get an abortion is acceptable.

But here's the difference. If Kennedy decides that HB 2 does not impose an undue burden on the women of Texas it will not — as it would have before Scalia's death — mean that the fight is over. Kennedy's vote for the law, without a replacement justice on the bench, will result in a 4-4 tie.

That will mean the decision of the 5th Circuit, which reversed an initial lower court ruling that said the ASC requirement was unconstitutional, will stand, but it won't count as precedent. HB 2 would be on track to end up in the court again, after Scalia's replacement is confirmed.