Before Supreme Court Justice Antonin Scalia died, his colleague Anthony Kennedy was the swing vote on whether to uphold H.B. 2, the Texas abortion law that restricts the procedure to surgical centers and requires doctors who perform it to have admitting privileges at a nearby hospital. Now that the Supreme Court is down to eight members, Kennedy is still the swing vote, although not in quite the same way. If Kennedy sides with the three conservative justices who clearly want to approve H.B. 2, the even split will leave in place an appeals court ruling that upheld the law, but the impact will be limited to the 5th Circuit. If Kennedy sides with the four liberal justices who clearly want to overturn H.B. 2, the ruling will doom similar laws throughout the country. His questions during yesterday's oral argument suggest the latter possibility is more likely.
Under Planned Parenthood v. Casey, the justices are supposed to decide whether H.B. 2 imposes an "undue burden" on the right to obtain an abortion, meaning that "its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability." As I noted in my column yesterday (and as Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer emphasized during oral argument), the medical justification for H.B. 2 is very weak, which suggests protecting women's health is a pretext for discouraging abortion, since the law is expected to reduce the number of abortion clinics in Texas by about 75 percent.
Texas Solicitor General Scott Keller argued that the resulting burden should not be considered "undue" as long as women "are able to make the ultimate decision to elect the procedure." But Kennedy, who played a crucial role in deciding Casey, did not seem inclined to accept that argument. He suggested that the state's rationale for a regulation and the obstacles created by the regulation are not "two completely discrete analytical categories," that "the undue burden test is weighed against what the state's interest is."
In other words, any given burden on women seeking abortions might be deemed constitutional or not, depending on the strength of the state's justification. That means the crucial issue may be not how many women will have to drive how much farther to get abortions as a result of H.B. 2 but whether the official justification for the law has any real scientific basis. Focusing on the law's rationale, as opposed to its practical consequences (which remain uncertain), does not bode well for its supporters. Another bad sign for them: Kennedy noted that H.B. 2 seems to have encouraged women who might have obtained drug-induced abortions to have surgical abortions instead, which "may not be medically wise."
Then again, Kennedy also suggested, during a discussion of whether the case should be remanded for further fact finding, that the Court might not know enough about the capacity of the abortion clinics that would remain after H.B. 2 took full effect. Before the law was passed, he noted, those clinics accounted for about 20 percent of the state's abortions. But he wondered if they might be able to expand enough to pick up the slack.
If the case is sent back to the lower courts, the justices might not see it for another year or two, at which point the significance of Kennedy's vote will have changed once again. Should Hillary Clinton win the presidential election in November, Kennedy's vote won't matter, since whoever she picks to replace Scalia will side with the Court's liberal wing to overturn H.B. 2. If a Republican wins the election (even if it's Donald Trump), Scalia's replacement probably will vote to uphold the law, in which case Kennedy will once again have the power to set a national precedent one way or the other.
Related Video: "Abortion Rights vs. Women's Safety in Virginia," released in 2013, looks at the ways in which conservative lawmakers passed economic and building-safety restrictions to reduce the number of abortion providers in their state (for more on the current status of the law, go here). For video links and original release text, go here.