With oral arguments before the nation's highest court today, the Supreme Court justices are tackling what could be one of the most important abortion cases in decades. Whole Woman's Health v. Hellerstedt is a challenge to HB 2, the Texas law that requires abortion facilities meet the standards of surgical centers and abortion doctors have admitting privileges at nearby hospitals.
Now, the Court is down one justice and at an ideological 4-4 split, so what will a ruling mean from the eight-justice Court?
Dahlia Lithwick, who follows the Supreme Court for Slate, says without Scalia, there are real questions what the Court could do if there were a tie. She says, historically, when the Court has been short-handed, it will hold cases until the bench is full.
"The problem with that, of course, is that given the promises we're hearing from the GOP heads of the Senate Judiciary Committee that there's not going to be a Court next fall," Lithwick says. "The possibility of holding it over and rehearing in November when there's still only eight Justices becomes less attractive to the Court."
Justice John Roberts is on the record as feeling strongly about abortion, Lithwick says, so it's not a simple case for him to "flip" on.
"He's going to have a strong, strong impulse to do whatever he can to keep the Court from exploding onto the front pages in June, with a whole bunch of ideologically riven and angry 4-4 cases," she says. "That's the last thing that he wants the Court to look like going into an election year."
Lithwick says if the Court splits, the lower court opinion from the Fifth Circuit becomes controlling law, but only on the Fifth Circuit – enforceable in Louisiana, Texas and Mississippi. Typically the swing vote, Justice Anthony Kennedy voted to uphold the partial-birth abortion ban in 2007. This case may prove another battleground for his beliefs.
"This is a tricky case for Justice Kennedy," she says. "It purports to protect maternal health... but it's going to have the effect of making sure that hundreds and thousands of Texas women either have to drive 150, 200 miles to clinics that are giving them 20- and 30-day waiting periods."
Lithwick says Kennedy's goal in 2007 was to "help women make better decisions" about their health. In 1992, he was one of three crucial votes who upheld Roe v. Wade and said stare decisis – the legal notion that precedent holds – mattered to him because women relied on the ruling.
"But this is not about helping women make better decisions," she says. "This is about making sure can't have a decision. That may be a sticky wicket for him."