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What if the Supreme Court punts on abortion?

Decoding Justice Anthony Kennedy's comments in oral argument last week, and what they mean for the future of abortion access.
Demonstrators assembled in front of the Supreme Court steps in Washington D.C. on March 2, 2016 as the Court heard oral arguments in the Whole Woman's Health v. Hellerstedt case. (Photo by Jeff Malet/Newscom/ZUMA)
Demonstrators assembled in front of the Supreme Court steps in Washington D.C. on March 2, 2016 as the Court heard oral arguments in the Whole Woman's Health v. Hellerstedt case.

What if the Supreme Court case on abortion, perhaps the most-watched case on the docket, ends with the court deciding not to decide? That's a distinct possibility, one advocates for abortion rights do not particularly welcome.

At oral argument last week for the potentially earthshaking case out of Texas, Whole Woman's Health v. Hellerstedt, the possessor of the pivotal vote, Justice Anthony Kennedy, said little. What he did say suggested he was considering remanding the case, or sending it back to the lower courts with further instructions.

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The case turns on new regulations Texas has placed on abortion providers, which the providers say are forcing them to close. The clinics argue the laws place an unconstitutional, "undue burden" on women, citing a legal standard Kennedy himself helped set. About half of Texas's abortion clinics closed when the first requirement, that doctors obtain admitting privileges at local hospitals, went into effect. If the second requirement, that early abortions only take place in ambulatory surgical centers, goes into effect, only ten clinics would remain. In its defense of the law, Texas claims those clinics can handle the remaining demand for pregnancy termination.

"The State, I think, is going to talk about the capacity of the remaining clinics," Kennedy told Stephanie Toti, arguing on behalf of the clinics. "Would it be A, proper, and B, helpful, for this Court to remand for further findings on clinic capacity?" 
"I don't think that's necessary, Your Honor," Toti replied, citing existing evidence from the trial court. 
The prospect of kicking the can down the road may be more palatable to Kennedy than striking down the law outright, or, in the absence of a ninth justice, upholding it in a 4-4 tie, creating a patchwork of laws throughout the country. 

If the court does remand the case, it could return to the court a second time, as another recent remanded case, Fisher v. Texas, did this term. Though no one knows how long it will take to confirm a successor to Justice Antonin Scalia, who died in February, a second round for Whole Woman's Health could make its way back up in time for a ninth vote. The key question would be how much of the law the court would allow to go into effect in the interim, determining the future of abortion access in Texas. 

Either way, it's not an appealing prospect to legal advocates for abortion rights. "Deciding not to decide [the law's] constitutionality in Whole Woman’s Health would be a mistake," wrote Leah Litman, a co-author of the briefs for the clinics. "Doing so would create substantial uncertainty — and accompanying burdens — for women in Texas.  It would also contribute to uncertainty — and accompanying burdens — elsewhere."  

Jennifer Dalven, director of the ACLU's Reproductive Freedom Project, agreed. "The failure to make a decision on the merits leaves this extremely important question unanswered," she said. "There are many other cases that raise this question, which is, 'Does the state have to show that there is any medical justification for shutting down clinics where women can get safe and legal abortions?'"  

The justices are well aware of the other cases. The court just last week temporarily blocked Louisiana's admitting privileges law as the litigation proceeds. It is currently sitting on an appeal from Mississippi in defense of its admitting privileges law, which would shut down the state's last abortion clinic. Another appeal from Wisconsin on its admitting privileges law is expected by the end of the month, and litigation is underway in Alabama as well. 

"I think that’s honestly much more a judicial effort to find a way out of the case than it is a realistic assessment of what’s going on," said Gillian Metzger, a professor at Columbia Law School who helped file an amicus brief in support of the clinics' case. "I think we know what’s going on. It’s a very developed record and I don’t think there’s a need for an additional trial."

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Julie Rikelman, an attorney at the Center for Reproductive Rights, which is representing the clinics, agreed that the evidence is already there to support the fact that the clinics left under Texas' law couldn't meet demand.  "The admitting privileges requirement in and of itself makes it very difficult for clinics to meet capacity. It limits the pool of physicians," she told MSNBC. "The remaining clinics are having problems meeting the demand even now." 

The very focus on clinic capacity, Metzger argues, is also legally beside the point. "The problem is that these laws do not serve any medical purpose," she said, echoing briefs by the American Medical Association and the American College of Obstetricians and Gynecologists. "A remand to determine the degree of burden, whether they can reach capacity, doesn’t at all address the fact that there’s no point to these laws but to make abortion more difficult. They should fall because of their burden alone, but they should also fall because they’re undue."

In other words, advocates for the clinics want Kennedy to look at whether there is any good reason for the law, not just whether it makes enough women suffer to be unconstitutional. It was a question Kennedy himself raised: "I mean, are they — are these two completely discrete analytical categories, undue burden, and we don't look at the state’s interest?" he asked at oral argument.

If Kennedy decides that both factors — the justification for the law, and how much it harms women — matter, that will be good news for supporters of abortion rights. In the meantime, they wait.