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Will the Supreme Court Punt on Texas Abortion Case?

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By Casey C. Sullivan, Esq. on March 02, 2016 2:57 PM

The Supreme Court heard oral arguments today in one of the most important cases of the term, Whole Women's Health v. Hellerstedt, a challenge to Texas's restrictive regulations on abortion clinics. If the court approves of the Texas law, it could soon become a model for reducing family planning access across the country. If the Court strikes it down, it would be a solid reaffirmation of Roe v. Wade and Planned Parenthood v. Casey.

To put it mildly, the stakes are high and Whole Women's Health is expected to be a contentious decision. But oral arguments today raised the possibility that the Supreme Court could end up not touching the merits at all.

Conservatives Attack the Record

When Justice Scalia was on the bench, the Court faced a four-four split on abortion, with Justice Kennedy vacillating in the middle. (Justice Kennedy helped establish the undue burden standard in Casey, but also upheld the federal ban on partial birth abortions in 2007's Gonzalez v. Carhart.)

Justice Scalia was one of the Court's fiercest critics of Roe, but now he's gone and the anti-choice bloc of the Court faces more formidable odds. They may, however, decide to pass on the fundamental issues, kicking the case down to lower courts for a fuller development of the record.

What would justify the remand?

The petitioning abortion care providers have claimed that the Texas law, which requires clinic physicians to have admitting privileges at hospitals and mandates that clinics establish hospital-grade facilities, has shut down most of Texas's abortion providers. That's an undue burden on women's rights, they argue.

But, as Reuters' Lawrence Hurley noted yesterday, the Texas Solicitor General has taken issue with those claims, arguing that petitioners haven't shown that the law has actually caused clinic closures.

Kennedy Suggests Remand

Those arguments were echoed by the conservative justices from the get-go. In the first minute, Justice Alito noted that "there is very little specific evidence in the record" as to why any clinics closed. That was followed by a continued barrage of tough questions from Justice Alito and Chief Justice Roberts, meant to focus the Court's attention on the lack of record evidence.

There were even questions about whether admitting privileges were at issue at all in the challenge.

Those uncertainties seemed to resonate with Justice Kennedy. It was Kennedy who suggested remanding the case to the lower courts. And it was Kennedy who questioned whether the remaining Texas clinics would have the capacity to handle the tens of thousands of abortions requested by Texas women every year.

"Would it be A, proper, and B, helpful, for this Court to remand for further findings on clinic capacity?" Justice Kennedy wondered. He even proposed that a district court might be able to "say we're going to stay this requirement for two-and-a-half, three years, to see if the capacity problem can be cured."

Should the Court pass on the merits this time around, the case would likely return in a year or two, where it will face a newly-constituted, nine-Justice Supreme Court and a potentially vastly different outcome.

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