Even-numbered SCOTUS hears arguments on key abortion case

Did the death of Justice Antonin Scalia doom the chances for Texas’ post-Kermit Gosnell requirements for abortionists to comply with regulations for all other surgical centers? The Supreme Court takes up the case today of Texas’ new laws, passed after protesters hijacked a legislative session and Wendy Davis made her sneakers famous, but with only eight justices on the panel. The Hill wonders how the court will split on the most contentious abortion-regulation case since Casey:

The case, Whole Woman’s Health v. Hellerstedt, could decide whether Texas can enforce one of the nation’s strictest abortion laws. The outcome will have broad repercussions on abortion access as well as the election-year fight over replacing the late Justice Antonin Scalia.

Only eight justices will hear the case, raising the possibility that the case will deadlock in a 4-4 tie. If that happens, a lower court ruling that upheld the Texas law would stand, though it wouldn’t set a precedent nationwide. …

Both provisions of the law that are being challenged place mandates on abortion clinic operations, requiring them to meet the standards of hospital-style surgical centers. The law also requires that abortion doctors have admitting privileges at hospitals within 30 miles.

The assumption prior to Scalia’s passing was that the court would end up splitting 5-4, with Anthony Kennedy being the central vote in the end. Now, the worry for pro-life activists is that it may be a 5-3 outcome, with Kennedy forming a majority to reject Texas’ position and set precedent in doing so. The best outcome possible — at least from the standpoint of past behavior — would be the 4-4 split that allows Texas to continue enforcing the law but sets no other precedent, at least at the national level. The precedent would remain for states within the Fifth Circuit, as that appellate panel reversed the district court and ruled that Texas had a rational basis for creating the law.

So the focus still falls on Kennedy, regardless of the current line-up. The Washington Post notes that while Kennedy wrote the governing opinion in Casey, he has ever since sided with the states on abortion regulations, save in one instance:

Kennedy, 79, is hardly the rescuer that abortion rights supporters would wish for. In his nearly three decades on the court, he has upheld every abortion restriction he has ever considered save one. The exception was a Pennsylvania law that required pregnant women to notify their husbands before seeking an abortion.

Given that the test for the law will be whether Texas has a rational basis to require admitting privileges and that clinics meet surgical-center standards, the Gosnell horror should be front and center in today’s arguments from Texas, as they were with the Fifth Circuit. With some justices, that appeal may fall on deaf ears as they will claim (like the AMA did) that there is no medical reason to impose those restrictions. However, the argument that won at the appellate level was that the court doesn’t have a role in criticizing the policy created by the state legislature when it comes to regulating issues such as abortion, only that the policy created serves a legitimate state interest and is rational to the issue at hand. The Gosnell case speaks directly to those points, with the horrors of unregulated surgeries and incompetent medical practice all too apparent.

Of course, that does not mean that Texas or the pro-life side can breathe easy here. It will be a long several months between today’s arguments and the eventual decision, likely to come at the end of the term in late June. But perhaps we can hope that at least four justices will recognize that applying the same standards of care for outpatient surgical centers to abortion clinics is at least rational, even if perhaps they do not necessarily agree with the policy itself, in light of Kermit Gosnell’s depravity and the inability of Philadelphia and Pennsylvania to protect its women and children from him and others like him.