First, a little background. In 2013, Texas passed the two laws at issue here: 1) a requirement that abortion providers have admitting privileges at a nearby hospital; and 2) a requirement that abortion facilities comply with the requirements for ambulatory surgical centers.
The plaintiffs in the case are clinics and doctors that provide abortion services, among other things; Whole Woman’s Health is one of those clinics. They have challenged the Texas laws, arguing that there’s no evidence that the laws promote health and that they’re really about impeding women’s access to abortion. If the laws go into effect, they claim, the number of clinics in Texas will drop to 10 or fewer (the laws are largely on hold at the moment, while the Supreme Court considers the case).
Dr. John Hellerstedt, the Commissioner of the Texas Department of State Health Services -- the agency that enforces the challenged laws -- argues in response that Texas is just trying to ensure patient safety and improve standards of care. He also argues that it’s the job of legislatures, not courts, to decide whether laws like these are medically necessary.
It's important to note that these are the same TRAP laws Gov John Kasich has installed in Ohio, closing half of the state's abortion clinics there in moves that could leave Cincinnati as the largest metropolitan area in the country without a single abortion provider.
This has the potential to be the most important abortion case in nearly 25 years. The two most significant abortion cases the court has decided -- Roe v. Wade, in 1973, and Planned Parenthood v. Casey, in 1992 -- found that the Constitution protects a woman’s right to terminate a pregnancy, at least prior to viability, but also found that states have a legitimate interest in regulating abortion. But the court hasn’t provided much guidance about when state regulation crosses the line, and this case could do that.
There are at least three possible outcomes (and they mostly turn on Justice Kennedy, who holds the key vote in this case). First, if Justice Kennedy thinks the regulations have gone too far, they’ll likely be struck down 5-3, which will make it harder for states to pass abortion regulations that seriously interfere with women’s ability to obtain abortions. If Justice Kennedy concludes that the Texas laws are permissible, the court will likely divide 4-4, affirming the lower court opinion and leaving the regulations in effect, but making no law for the rest of the country. And there is a third possibility -- that the chief justice could hold the case over for re-argument some time next term, when the court may have a ninth justice in place.
The good news is for now, with the passing of Justice Scalia, there won't be five votes to make Texas's TRAP laws viable nationwide. The bad news is that there will be enormous pressure by Republicans on Chief Justice Roberts to punt until they allow a replacement (which if a Democrat wins in November and the GOP keeps the Senate may be never.)
But Zandar, you say, Republicans can't "pressure" Roberts to do anything, right?
Oh sure, in a perfect world But Roberts saw how Republicans de-legitimized everything President Obama did over eight years, and Roberts doesn't want to be the same way. Surely any decisions that the GOP doesn't like would be attacked as illegitimate for only having 8 justices.
But they can't do that when they are the reason no justice can even be considered, right?
Do you think anyone will be able to stop them? Our media and voters haven't so far.
We'll see.