With the death of Justice Antonin Scalia, the U.S. Supreme Court has lost its most ardent pro-life voice two weeks before the court hears a Texas lawsuit considered one of the most important abortion-related cases since Roe v. Wade. Also lost is the precedent-setting ruling that would have settled legal challenges to abortion regulations across the nation.
Scalia died in his sleep Feb. 13 at the age of 79 while on a hunting trip in West Texas. His absence on the court could jeopardize the outcome of pro-life and religious liberty cases pending before the court, including Whole Women’s Health v. Hellerstedt—a challenge to Texas abortion regulations established in 2013. The court will hear those arguments March 2.
Confident he would have upheld the Texas law, known as House Bill 2 (HB 2), pro-life advocates said it is Scalia’s voice, informed by the intent of the Constitution’s framers, that will be missed during oral arguments. John Seago, legislative director for Texas Right to Life was not confident any of the remaining justices could fill that void. He said Scalia argued the Constitution applied to the pre-born and opposed efforts by his fellow jurists to “rewrite history.”
Seago believes Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, particularly, have pushed to reframe the Roe v. Wade decision away from its “right to privacy” foundation to one of gender equality. Without Scalia’s counter arguments the more liberal wing of the bench could hold sway over oral arguments and the final decision.
Justice Anthony Kennedy will be the deciding vote giving pro-life advocates a tie or handing them a 3-5 loss. A 4-4 decision will let stand the U.S. Court of Appeals Fifth Circuit ruling upholding the Texas law, but it will not apply across the country like a majority decision would. States with similar legal challenges will have to argue their own cases before the high court.
Many conservatives were hopeful a majority decision upholding HB 2 would once and for all define “undue burden,” an ambiguous requirement dictated by the Supreme Court in the 1992 case Planned Parenthood v Casey. Without quantifying the “undue burden,” the court left open to legal challenge attempts across the nation to regulate the abortion industry.
“That’s one of the things we were hopeful about. But now that’s been taken away,” said Seago. “It’s unfortunate that we can’t settle this.”
If upheld there are two exceptions to the implementation of HB 2. The U.S. Court of Appeals Fifth Circuit ruled last year Texas could require abortion facilities meet ambulatory clinic standards and require abortionists attain admitting privileges to hospitals within a 30-mile radius of the abortion clinic where they work. But the court made an exception for Planned Parenthood abortion facilities in McAllen and El Paso. Both facilities faced closure for failure to comply with the regulations.
Using the “undue burden” argument, attorneys for the abortionists said the clinics’ closures would force abortion-minded women to drive hundreds of miles to the nearest Texas abortion clinic. The appellate court agreed.
If HB 2 is upheld, Seago said, about 15 Texas abortion clinics will be forced to close pending compliance, leaving 10 or 11 facilities open.