The Patriot Post® · SCOTUS Abortion Case Outcome Remains Unclear

The Supreme Court on Wednesday heard oral arguments over Texas’ contentious 2013 law that more heavily regulates the state’s abortion industry. But the most probable outcome seems no clearer today than it was when Justice Antonin Scalia’s death added an element of perplexity to the case. The best pro-lifers can hope for is a 4-4 split, which would uphold a lower court’s ruling in favor of the law. But the swing voter, Justice Anthony Kennedy, left open several possibilities. His vote is interesting because, as The Wall Street Journal notes, “The justices are deciding whether the requirements are constitutional under a 1992 precedent, co-written by Justice Kennedy, holding that abortion regulations can’t impose an ‘undue burden’ or ‘substantial obstacle’ to obtaining the procedure.” Essentially, Kennedy is judging the merits based on his own opinion from 24 years ago. But different media outlets have a different perspective on the cues he was giving.

CBS News says that Justice Kennedy “didn’t tip his hand Wednesday, although he did ask whether the Court should send the case back for more evidence. And that would delay any decision until a new justice is in Scalia’s seat.” However, the Journal contends that Kennedy “may have tipped his hand after Texas Solicitor General Scott Keller argued that courts shouldn’t second-guess the legislature’s judgment regarding patient safety, and should only consider whether the regulations deprived women of the ability ‘to make the ultimate decision to elect the procedure.’” The Journal, like CBS, also says he “wondered whether the case should be sent back to lower courts for more fact finding on the law’s impact.”

As for the other jurists, Justice Ruth Bader Ginsburg argued, “What it’s about is that a woman has a fundamental right to make this choice for herself.” Meanwhile, Justice Samuel Alito said, “As to some of them, there’s information that [abortion clinics] closed for reasons that had nothing to do with this law.” Chief Justice John Roberts was likewise skeptical that the law was forcing clinics to shutter: “What is the evidence in the record that the closures are related to the legislation?” We won’t know whether the Court defers the case to the lower court, sends it back for reinterpretation or strikes it down altogether until probably June. In the meantime, this illustrates just how important it is to nominate and confirm a jurist who defends all life.