Will Merrick Garland Be Confirmed Before The Texas Abortion Case?

Earlier this week, President Barack Obama nominated Judge Merrick Garland to fill Antonin Scalia's vacant seat on the Supreme Court, just one month after the late justice passed. Obama's decision to nominate Garland floored both Democrats and Republicans, who were expecting a much more liberal pick from the same president who nominated Justices Elena Kagan and Sonia Sotomayor for the nation's highest court. Despite Garland being something that seems like a compromise, Senate Republicans have said they won't confirm Garland — or any Obama nominee — before the 2016 presidential election. But even if Garland were confirmed in a timely manner, his appointment to the Supreme Court wouldn't affect any of the cases heard this term, including one of the high court's most important cases: the challenge to HB2, Texas' omnibus abortion law.

The Texas abortion case has abortion providers and reproductive health advocates worried, and with good reason: Whole Woman’s Health v. Hellerstedt could dramatically impair access to abortion across the United States, and following the oral arguments earlier this month, the last standing abortion clinics in Texas and in states with similar laws designed to limit abortion access remain on shaky ground. There's a solid chance there will be a 4-4 outcome, which means the Fifth Circuit Court of Appeals' decision to uphold the law will stand, leaving fewer than 10 abortion clinics in Texas.

If Garland were to be confirmed before June, when it's presumed the Whole Woman’s Health v. Hellerstedt decision will be made, his appointment still wouldn't affect the decision. Following Scalia's death, the Supreme Court had to forge ahead with just eight justices for this term, and all the cases heard this winter and spring will be decided with just those justices. Any split 4-4 decisions won't set a Supreme Court precedent, but automatically uphold the lower courts ruling; it's as if the Supreme Court hasn't heard the case at all.

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In a hypothetical world where Garland could be a deciding vote in the Whole Woman’s Health v. Hellerstedt, it's a bit difficult to tell how the chief justice of the D.C. circuit court would vote. As Mother Jones pointed out, Garland has rarely engaged in the so-called culture wars as a judge. Garland's views on abortion aren't very apparent, especially when compared to conservatives such as Justices Samuel Alito and Clarence Thomas (and, of course, Scalia, the most religious of them all).

Garland's reticence on this issue has led anti-abortion groups such as Americans United for Life to accuse the judge of being "pro-abortion" and part of Obama's abortions-for-everyone agenda. "The voters need to weigh in on the direction of the nation’s most powerful court, and given the reality that the Supreme Court has set it self up as the nation’s ‘Abortion Control Board’ in its sweeping Roe v. Wade decision, it is time let the people have a voice," AUL senior counsel Clarke Forsythe said in a recent press statement.

Perhaps Garland would tip the scales toward abortion access in Whole Woman’s Health v. Hellerstedt after all. But for now, at least, we'll never know.