A Kennedy "Super Swing" on Abortion Clinic Regulations?

Much of the discussion in the wake of Justice Antonin Scalia’s passing has focused on the election year political drama surrounding the selection of his replacement. Whether President Barack Obama will nominate a replacement is not in question. Attention now turns to whether the current Senate will confirm any nominee, no matter how qualified to sit on the Court. This blog post leaves the answer to that question for those whose interests lie in the beltway politics that will dominate much of that discussion.

This blog post focuses on Justice Anthony Kennedy’s role as the Court’s most reliable swing voter in light of Scalia’s passing. Many (myself included) have been clutching their pearls at the thought of a 4-4 split on any of the pending cases before the Court, which involve hot button issues as prosecutorial discretion to set deportation priorities, affirmative action, the one-person, one-vote principle, and employee union speech. Normally when a 4-4 split results, the Court’s opinion has no binding precedent and the lower circuit court opinion stands. Writing for SCOTUSblog, Tom Goldstein hypothesizes that any case that results in tie vote will likely be set for a re-argument that will occur once Scalia’s replacement has been confirmed. Goldstein’s theory is quite sound, but may be unnecessary in at leastone case pending before the Court: Whole Women’s Health v. Hellerstedt, which involves the constitutionality of Texas’s abortion clinic regulations.

Long before Scalia’s death, Kennedy’s vote had already proved pivotal in abortion cases. Kennedy joined O’Connor’s 5-4 plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey. Casey affirmed Roe v. Wade’s essential holding that a woman has the right to terminate a pregnancy prior to viability. Casey also struck down a spousal notification requirement as an undue burden on the exercise of the right. Fifteen years after Casey, Kenney was the author of a 5-4 opinion in Gonzales v. Carhart that upheld the federal Partial-Birth Abortion Ban Act of 2003. Despite the ultimate result in Carhart, Kennedy re-affirmed the right to an abortion and designated that right a guiding principle in future abortion cases. Kennedy ultimately held that the 2003 Act did not place a substantial obstacle on a woman’s ability to obtain an abortion, reasoning that sufficient and reasonable alternatives were still available.

Whole Women’s Health, which is set for oral argument before the Court on March 2, 2016, does not involve the constitutionality of the right to an abortion. Instead, it involves the constitutionality of two abortion clinic regulations in Texas. The first is a requirement that a physician who performs or induces an abortion have active admitting privileges at a hospital located not further than 30 miles from where the abortion is to be performed or induced. This provision was scheduled to take effect on October 29, 2013. The second was a requirement that an abortion center meet the minimum standard for an ambulatory surgical center. This provision was scheduled to take effect on September 27, 2013. The federal district court held the measures unconstitutional on August 29, 2014. A panel of the United States Court of Appeals for the Fifth Circuit reversed on June 9, 2015, and gave Texas its blessing to enforcement the regulations.

The potential importance of Kennedy’s swing vote in Whole Women’s Health became apparent even before the petition for a writ of certiorari was filed. On June 29, 2015, only four Justicesvoted to deny a stay of the Fifth Circuit’s mandate thatTexas be allow to enforce the regulations. Kennedy was not among those four Justices and a stay of enforcement was granted. On November 13, 2015, the cert. petition was granted.

This blog post does not attempt to divine how Justice Kennedy will rule in Whole Women’s Health. However, it is noteworthy that the petitioners have argued that enforcement of Texas’s new requirements would close approximately seventy-five percent of the state’s clinics and would leave the majority of the remaining clinics in urban areas. The effects of these restrictions on women in rural areas may be key, although Texas argues that eighty-three percent of Texas women of child-bearing age would still reside within 150 miles of an abortion clinic. It may also be relevant that similar restrictions in Mississippi were overturned by a different panel of the Fifth Circuit. The ruling in that case was also appealed and currently sits on hold.

Assuming that Kennedy votes that the abortion clinic regulations at issue in Whole Women’s Healthdo constitute an undue burden on the right to an abortion, the ruling will likely be a 5-3 majority. Such a result would put the dozen or so other states with similar regulations on notice. More importantly, Kennedy’s “super swing” vote would by no means be limited to the abortion context. Thus increasing the stakes the longer the Senate takes to confirm a new member of the Court.

Shaakirrah R. Sanders is an associate professor at the University of Idaho College of Law. She teaches subjects related to government structure and individual rights under the United States Constitution.