On March 2, the Supreme Court will hear arguments on a Texas abortion law that aims to make it extremely difficult for abortion clinics to operate in Texas. The case of Whole Women’s Health versus Hellerstetd will determine whether Texas may require that abortion clinics have admitting privileges at a local hospital and whether abortion clinics must meet ambulatory surgical center requirements. Meeting ambulatory surgical center requirements may cost millions of dollars for a clinic. Texas law also forbids abortion after 20 weeks.
While these two requirements may seem reasonable on their face, there is no apparent medical need for them. The American College of Obstetricians and Gynecologists state there is no need for admitting requirements for abortion providers, citing abortions’ low complication rates. And a 2013 study that reviewed the health departments of every state, found no medical reason for admitting requirements. The 2013 study arose as a result of the convicted Philadelphia abortion Doctor Kermit Gosnell’s practices. Although there are many differences in how abortions are regulated by state laws, the study found that abortion is overwhelmingly safely regulated in the U.S.
Since the Texas law passed in 2013, dozens of abortion clinics closed- leaving only approximately 10 open to service all of the women in Texas who need these services. The closures have resulted in longer wait time and an increase of self- induced abortions according to a recent study . There are over 5 million women of reproductive age living in Texas.
More troubling for the case and abortion rights advocates is how the effect of 8 justices hearing the case will affect the decision. Due to Justice Scalia’s death, the Supreme Court appears evenly divided with four liberal justices and four conservative justices. Justice Kennedy is sometimes the swing vote. After hearing arguments tomorrow, should the justices end with a tie vote on its decision, the lower court ruling will stand. And regrettably, that might mean that the remaining 10 abortion clinics and providers will shut down—leaving the State of Texas without any doctor or clinic to perform abortions on women who require the services.
The Texas case is but one example of why the Supreme Court cannot wait for over a year before a new justice is appointed and confirmed. And there will many other cases before the U.S. Supreme Court in 2016 that could have potentially devastating effects without a clear decision from the highest court.
Other cases to watch in 2016 include Fisher v. Texas on affirmative action and whether to forbid race to be considered in any matter on admissions; Friedrichs v. California Teachers’ Association on public union dues requirements which could affect many state unions and Zubick versus Burrell one of the never ending cases on the Affordable Care Act and religious exemptions under the Act. Several have already been argued.
It is unclear if Chief Justice Roberts will ask for re-argument in certain cases until another justice can sit –before an opinion occurs. If not, and a tie vote occurs, there will be no decision from the Supreme Court on many substantive issues before the Court. And no decision will mean that justice will be denied in some cases. In the case of Whole Women’s Health, it may mean that in death as in life, Justice Scalia’s conservative presence may still be felt.
Washington, DC based Debbie Hines is admitted to practice before the Supreme Court.