Sunday, June 26, 2016

[U] Supreme Court Watch: What Happens If We See A 4-4 Deadlock Tomorrow, On The Texas Abortion Rights Case

Updated: The Supremes invalidated almost all of the Texas law, in a 5 to 3 decision, as I guessed in March of this year. Thus, with Justice Kennedy joining the liberal wing -- and the death of Scalia -- and the Republicans' failure to do their job. . . it all made no difference. It would have come out the same way, even if Justice Scalia had lived on. This should be a warning to obstructionist Republicans. End, update.

Many Supreme Court observers expect to see the outcome (or perhaps, non-outcome) from the latest in the Texas state legislature's efforts to restrict lawful abortions in state, announced tomorrow morning.

Given what we saw last week on the immigration measures case, there is a more than passing chance that we see another "your government, NOT at work" 4-4 deadlock. At issue (primarily) is whether a Texas law requiring that doctors who provide abortions in Texas must have full admitting privileges at a near-by hospital, or a surgi-center on site in the office, in order to provide abortions is constitutional after Roe v. Wade and Planned Parenthood v. Casey.

Here is where the law would then leave women seeking control over their own bodies, in Texas, were that unfortunate stalemate between Justices to occur yet again.

In plain English, the last court to rule on the case would be the binding decision. In this particular case, that was the Fifth Circuit -- out of New Orleans.

That court struck parts of the Texas law, but upheld other parts of it. Here is some of that Fifth Circuit decision:

. . . .Because the Plaintiffs failed to prove that the ASC requirement imposes an undue burden on a large fraction of women for whom it is relevant, we conclude that the district court erred in striking down the ASC requirement as a whole as facially invalid. . . .

We [however] now know with certainty that the non-ASC abortion facilities have actually closed and physicians have been unable to obtain admitting privileges after diligent effort. Thus, the actual impact of the combined effect of the admitting privileges and ASC requirements on abortion facilities, abortion physicians, and women in Texas can be more concretely understood and measured. . . .

While women in the Rio Grande Valley could previously travel 150 miles or less to Corpus Christi to obtain an abortion, see Abbott II, 748 F.3d at 597–98, the abortion facility in Corpus Christi has now closed. The State argues that women in the Rio Grande Valley continue to be able to obtain abortions in San Antonio and Houston, where the abortion facilities now nearest to them are located. Indeed, Plaintiffs’ expert, Dr. Grossman, concluded that fifty percent of the women from the Rio Grande Valley were previously obtaining abortions somewhere other than Corpus Christi, even before that clinic closed. Nonetheless, the closure of the Corpus Christi clinic means that all women in the Rio Grande Valley will have to travel approximately 235 miles to San Antonio or farther to obtain an abortion. . . .
The Fifth Circuit went on to hold that the District Court was within bounds to find that one-third increase in distance -- to 235 miles of distance -- for an abortion, was an undue burden on the right of women to control their bodies under Roe, and Casey.

I am saddened, truly to even have to write about such scenarios as a possibility. Our founders would be ashamed of the Republican high-jinx here. 

Even so -- while much of the restrictive Texas measures would remain, the people of Texas will still be able to litigate, in new lower court cases, the issue of what constitutes an undue burden on women's rights to an abortion, on an "as-applied" basis. Far from optimal, but not a death-knell, either. Without a USSCT opinion, new parties may effectively re-litigate these issues, as they apply to them, in new fact patterns. Highly inefficient -- and a waste of judicial resources -- but that is apparently what the Republicans want.

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