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Texas women rally at the state Capitol in Austin.EXPAND
Texas women rally at the state Capitol in Austin.
Anna Merlan

What Does Kennedy's Retirement Mean for Reproductive Rights in Texas?

Texas reproductive rights groups and their legal allies made a major move earlier this month. In attempt to reclaim the abortion rights that Texas Legislature has slowly chipped away over the last decade, the groups sued the state. Two weeks after the lawsuit was filed on June 14, however, the rules of the game changed drastically. Justice Anthony Kennedy, the deciding vote on the U.S. Supreme Court's three previous major abortion decisions, retired Wednesday, leaving President Donald Trump to fill his spot on the bench.

The lawsuit, citing the Supreme Court's June 2016 ruling against two of Texas' most stringent abortion restrictions, seeks to end the state's ban on abortions after 20 weeks of pregnancy, the requirement that all women seeking abortions be given a sonogram before the procedure, and the 24-hour waiting period required between a woman's initial consultation with her doctor and the abortion procedure, among other restrictions.

Kennedy's vote in the 2016 case, which overturned Texas policies that required any doctor performing an abortion in the state to have admitting privileges at a nearby hospital and that all abortions be performed in hospital-like ambulatory surgical centers, turned what would've been a 4-4 tie into a 5-3 win for abortion-rights supporters. That victory provides the basis for the plaintiff's argument in the new suit, one that remains even with the swing vote's retirement, says Stephanie Toti, the lead plaintiff's attorney in both suits.

"It's too soon to know exactly what's going to happen because the process is still unfolding, but what I do know is that our case rests on more than 40 years of settled precedent, which was reaffirmed just two years ago [Wednesday]," Toti says. "It's imperative that whoever the next justice to the Supreme Court is that it's someone who respects that precedent and also the rights that underlie it. What's really at stake here is a right that's vital to women's dignity and equality."

This spring and summer, however, the Supreme Court has shown a willingness to move away from precedents, specifically with regard to hot-button issues. In one of the last decisions made public before Kennedy's announcement, the justice, along with the conservatives who remain on the court — John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch — overturned decades of established law with a ruling that forbids public-sector unions from requiring nonmembers to pay union dues.

As things stand, Texas' new abortion lawsuit is two steps away from the Supreme Court. First, it will be heard in a federal district court in Austin. After that court makes a decision, the case will then likely be appealed to the 5th U.S. Circuit Court of Appeals in New Orleans. Only after the 5th Circuit makes its decision would the case head to the Supreme Court, but it's easy to see the path the lawsuit will follow, given the 2016 case.

"There's a high likelihood that this case or one like it will end up in the Supreme Court in the next few years," Toti says.

Despite the potential that it could be heard by a court that has moved far to the right, Toti says that its imperative that the lawsuit against Texas' abortion restrictions move forward anyway.

"I think the bigger risk is in silence. Where people's rights are being denied, it's really critical that they have the opportunity to stand up and give voice to that," Toti says. "The plaintiffs in this case are committed to speaking truth to power and representing the rights of those folks who are most in need on constitutional protections. Ultimately, people with a lot of resources, they can leave the state of Texas or leave the country if they need to to access the health care they need, but folks who don't have a lot of money and don't have a lot of power are trapped. We need to make sure that those folks are represented in the process."

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