What effect will Scalia’s death have on the abortion decision before the Supreme Court?

The sudden death of conservative Supreme Court Justice Antonin Scalia already has pro-lifers concerned about the outcome of the first major abortion case the high court has agreed to hear in years. Whole Woman’s Health v. Cole was poised to potentially change the face of abortion in the nation, and now it may not.

Some pro-lifers are hopeful because if the court splits 4-4 on the case, as it may do, that would mean the ruling reverts to the decision of the lower court. The 5th Circuit upheld the contested provisions of HB2, but as good as that would be for Texas, the national consequences could be altogether different. A 4-4 split would remove the chance for the high court to set a new precedent on which future pro-life laws could be based.

When the Supreme Court agreed to hear Whole Woman’s Health v. Cole, its essential question was whether the Texas law (HB2) put an “undue burden” on women seeking abortions. In Planned Parenthood v. Casey, the Supreme Court ruled that states could not place an undue burden on women seeing abortions. Those opposed to HB2 argue it does just that because of the numerous clinic shutdowns it would bring. USA Today explains the argument:

The restrictions — forcing doctors to have admitting privileges at nearby hospitals and requiring clinics to meet standards for outpatient surgery centers — threaten to leave the state with only 10 clinics clustered in four population centers and along the Mexican border. A similar law in Mississippi threatens to close that state’s lone abortion clinic.

USA Today also explained that the decision in Whole Woman’s Health would “help clarify the court’s 1992 ruling in Planned Parenthood v. Casey, when a deeply divided court upheld the right to abortion while letting states impose restrictions that do not block women from obtaining services.”

Thus, as Live Action reported last month, “If the high court upholds HB 2, it would pave the way for other states to regulate the abortion industry just as Texas has done with this bill.”

With Scalia’s death, that chance for a precedent may be gone. The New York Times reports:

Without Justice Scalia, a 4-to-4 split would automatically affirm the appeals court’s ruling without giving reasons and without setting a precedent. In this case, that would uphold the restrictions and close all but about 10 clinics. But the Supreme Court would set no national rules, and the relevant constitutional principles would remain unchanged.

And therein lies the potential problem.

A 4-4 split would not set any precedents for the rest of the nation, as a majority win for Texas at the Supreme Court would have done. Essentially, Scalia’s death means the case may amount to a victory for Texas and a return to the status quo for the rest of the nation.

The vitality of the case has always been in the possibility of clarified abortion precedent. Live Action reported in January:

This ruling will be historic and important for the nation in the abortion battle, potentially closing many abortion clinics, shifting power to the states to regulate abortion more stringently, and open the pathway for new legislation and laws that will restrict abortion and now have a precedent for them to be upheld.

Without such a ruling, Texas abortions may be harder to come by – which certainly will be good news and will save the lives of many preborn babies. But still, 49 other states won’t have that precedent on which to base new pro-life laws. That’s why Whole Woman’s Health had the potential to be such a significant win for the pro-life movement.

Of course, an 8-0 decision in favor of Texas is what a just court would decide. It is outrageously unacceptable for judges to be activists – which is exactly what a vote for Whole Woman’s Health in this case would require. There remains the possibility – however slim – that the usual liberals on the Court will see this case as an issue of state rights in general and not of abortion in particular, and will therefore vote in favor of Texas.

We cannot lose hope, even while it seems most possible that pro-lifers will now have to wait for a conservative to replace Scalia – and that the high court agrees to hear another case that might finally set a precedent to shift power back to the states and save millions of lives.

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