When a landmark abortion case, Whole Woman’s Health v. Hellerstedt, will come before the Supreme Court.
The court has agreed to hear arguments in a 2016 Texas law called HB2, which attempted to ban abortion clinics in that state. The restriction would force the closure of 40 percent of Texas’s abortion clinics and was estimated to cause 50,000 women to seek abortions in other states.
The law was not blocked after the U.S. Fifth Circuit Court of Appeals agreed with a lower court’s decision to toss out the law on the grounds that it would be an “undue burden” on women seeking abortions. The Fifth Circuit judges said the measure was a sort of “undue burden” because it interfered with women’s constitutional right to legal abortions.
Where is the court going from here?
In light of this year’s Trump administration nominees to the Supreme Court, the chances are that the court will overturn its 1992 Roe v. Wade decision by a 5-4 margin. Many of the justices who voted to overturn the law in 1992 did so under a different president. John Roberts was the lone dissenting vote in the case. So if Kavanaugh replaces Anthony Kennedy, his opinion is unlikely to have the same grounding as Kennedy’s.
Who might be against the restriction?
With at least four new swing justices, there is a good chance that the 5-4 justices on a future court might end up again in favor of overturning Roe v. Wade. In a 2013 case, Kelly v. Texas, conservative justices Samuel Alito, Neil Gorsuch, Clarence Thomas and John Roberts sided with the majority to uphold abortion restrictions in the state. At the time, Thomas was the only justice to give an opinion or dissent from the majority, asking rhetorically, “The court asks us to re-argue the question: Is abortion legal under the Constitution?”
Scalia was an anti-abortion justice in the majority of cases against the Supreme Court’s 1973 ruling. Trump, by nominating men such as Gorsuch and Kavanaugh, has increased the odds that he’ll appoint a Justice Scalia with the votes to overturn Roe v. Wade and uphold the law.
What do opponents of abortion law think will happen?
Sen. Ted Cruz, a leading candidate to succeed Donald Trump as president, predicted an “all-out assault” on Roe v. Wade after the confirmation of a fifth and final conservative justice. Kevin de Leon, Democratic candidate for California attorney general, tweeted, “I will be fighting this fight before the U.S. Supreme Court, with full force and in the streets of San Francisco.”
The victory of Roe v. Wade did not mean that the fight over abortion had ended. In the early 90s, Catholic-backed Republican anti-abortion groups engaged in a backlash to the Supreme Court’s ruling. Now, the leaders of those groups are joining forces with groups that support abortion rights.
What do other states think about this case?
Right now, 10 states have tried to introduce similar restrictions in the Supreme Court. However, each of those cases was thrown out on procedural grounds, either because the lower court order was issued too late, or because the court did not have jurisdiction to hear the case.
If they win this time, a member of the conservative majority would be in a position to overrule a wide majority of high court rulings.
Who are the plaintiffs in this case?
Lead plaintiff Whole Woman’s Health is a coalition of 21 abortion providers in Texas, including two clinics that have since been forced to close, and 13 clients who had to find new doctors, new locations or possibly even increase the number of abortions they were performing.