Texas abortion law
On March 2, the court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, which challenges Texas’ 2013 abortion law. Beyond deciding the constitutionality of a law that could shut down about half of the state’s 19 remaining abortion clinics, the Texas abortion case gives the Supreme Court an opportunity to clarify how far states can go in restricting abortion.
In 1992, the court ruled that states can impose abortion restrictions as long as they do not place an undue burden on a woman’s ability to obtain an abortion.
Lower courts across the country have disagreed, however, on what constitutes an “undue burden.” Activists on all sides are hoping the high court will provide a clearer definition in its decision in the Texas case. That case centers on the state’s requirement that abortion clinics meet hospital-like ambulatory surgical center standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. In June, a three-judge panel of the U.S. 5th Circuit Court of Appeals largely upheld the new abortion restrictions, saying the new law does not impose an undue burden on a majority of Texas women seeking abortions.
Justice Anthony Kennedy could be the swing vote. If he sides with the conservatives on the court, the resulting 4-4 tie would affirm the lower court ruling.
The lower court also granted the relatively remote Whole Woman’s Health in McAllen an exemption to some narrow elements of the ambulatory surgical center requirements and from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.
Barring a tied vote, a decision in the Texas case could also determine the constitutionality of restrictions in place in other areas of the country. As of November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those states, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities. Those restrictions were not in effect in two of those states.
The high court also agreed to hear the state’s case against the Obama administration’s controversial executive action on immigration that was announced in November 2014.
Known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, the action would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for three-year work permits. Lower courts have ruled to halt the policy three separate times.
The Supreme Court agreed to hear the case in January but has yet to schedule arguments.
UT-Austin’s affirmative action policy
The death of Scalia cast uncertainty on many important cases before the Supreme Court, but probably won’t have a major impact on the decision in Fisher v. the University of Texas at Austin, which is a case about the constitutionality of affirmative action.
Justice Anthony Kennedy is still the likely swing vote, just as he was before Scalia died.
Abigail Fisher, who is white, contends she was unconstitutionally denied admission into UT-Austin in 2008 because of her race. UT-Austin considers the race of a small portion of its applicants, and black and Hispanic students often get a slight advantage in that pool of admissions. If Fisher wins her case, UT-Austin might be unable to consider the race of its applicants in the future. A broad ruling against UT-Austin could even end affirmative action nationwide.
Scalia, a longtime opponent of affirmative action, was almost certain to vote against UT-Austin. He was in the dissent in Grutter v. Bollinger in 2003, when the Supreme Court upheld the practice of affirmative action in a limited way.
Finally, the justices heard arguments last year on a Texas case that questions a basic idea in American election law. In Evenwel v. Abbott, the plaintiffs argue that their voting power is diluted by the way Texas draws its state legislative districts, saying those lines should be based on the number of eligible voters in each district and not on population.
Congressional districts are based on population, as directed in the Constitution. The Evenwel case challenges Texas Senate district lines; a decision allowing states to use eligible voters as a base could shatter current lines here and in other states that want to make the change, remaking the distribution of power in state legislatures. That decision is pending.
The court has already accepted those four cases, among others, but doesn’t have to do anything this term if the justices decide to change course.
If the justices don’t want to rule on a case they’ve already accepted, they can announce it was “improvidently granted,” which means lower court ruling holds, [Sanford Levinson, a constitutional law expert at the University of Texas at Austin] said. They can hold over any unheard cases they want until they have a ninth colleague, and they can rehear oral arguments with a ninth colleague if they want to wait or they think a ruling with a four-person majority would be too controversial.
“It certainly wouldn’t surprise me if they hold over some stuff where time really isn’t of the essence,” Levinson said. “You can make this argument of the election case [Evenwel]. If they hold it over, the world won’t come to an end.”
There’s a lot of good commentary out there about What This All Means, at least in the short term – see Think Progress, SCOTUSBlog, and Rick Hasen, for example. The main point to keep in mind is that in any case where SCOTUS winds up splitting 4-4, the ruling of the lower court would stand. From my perspective, that’s a good thing in some cases – Friedrichs being one example, Evenwel being another – and not so good in others, specifically Whole Woman’s Health and the DAPA case. In addition, in some cases that kind of result could also mean a split in the appeals courts. There are plenty of abortion restriction lawsuits out there, over laws similar to what Texas passed, and a number of other federal courts have struck them down. It’s not hard to imagine at least one appeals court upholding the lower court on those rulings, thus making laws like Texas’ legal in some states but not in others. Texas’ law is currently on hold thanks to SCOTUS, so one way to avoid this problem would be for the Court to delay hearing the appeal until they’re back at full strength. Or maybe the good Anthony Kennedy will show up and Texas’ law will get struck down on a 5-3 vote. Let’s just say that John Roberts has a lot to think about and leave it at that.
One other thing: Justice Scalia’s death has revived the idea of term limits for Supreme Court justices, an idea that has fairly broad support. Ted Cruz is a proponent of the idea, though as is always the case with Cruz, he has bad reasons for doing so. I’m perfectly fine with the idea of limiting Justices to 18 years on the bench. It’ll take a Constitutional amendment, so the odds of it happening are infinitesimal. but if it gains momentum that will be okay by me. For what it’s worth, prior to Scalia’s death, there were five Justices who had already served more than 18 years, and three of them were appointed by Republican Presidents: Scalia, Kennedy, and Clarence Thomas, along with Ruth Bader Ginsburg and Stephen Breyer. Make of that what you will.