The Supreme Court Abortion Ruling Is Almost Here

Some of this Supreme Court term's most influential opinions were handed down Thursday, but one was conspicuously absent. Affirmative action and immigration were addressed, but abortion rights remain on the docket — if only for a few more days. Back in March, the justices heard oral arguments on a challenge to new Texas abortion restrictions which require providers to have admitting privileges at a hospital and clinics to upgrade their facilities. At the time, the justices remained split ideologically on the matter, and now — according to SCOTUSblog — the Whole Woman's Health ruling will be handed down this coming Monday.

Whole Woman's Health v. Hellerstedt is one of three final opinions that are expected on June 27. That is the last scheduled day to release rulings for this term. During oral arguments, the court's four more progressive justices expressed skepticism toward the new restrictions. Their questions implied that the challenged portions of the Texas HB 2 were medically unnecessary and unconstitutional. Two of the court's more conservative members, Chief Justice John Roberts and Justice Samuel Alito, challenged the evidence that the law would force abortion clinics to close, even though when the law was briefly put in place, many clinics did close.

The crux of the case is whether the law violates the "undue burden" principle as established in Planned Parenthood v. Casey in 1992. "Unnecessary health regulations" can be considered an undue burden, according to that precedent. The Fifth Circuit appeals court decision upheld HB 2 last June. They took Texas' "stated purpose" for the law, to protect the health and welfare of women, at face value, and said, "There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions."

Even though the court shifted ideologically following the death of Antonin Scalia, in the end, it may come down to swing vote Justice Anthony Kennedy — just as in years past. That's because if he sided with the conservatives, the court would tie, and the Appeals Court finding would stand. At oral arguments, he entertained the idea of sending the case back to lower courts to gather more evidence; he said it would be helpful to know how many abortions could be provided if the law were to stand. He joined the court's liberal wing in placing the stay that has kept the Texas law from being implemented. Even so, about half of the state's abortion clinics have already closed.

Kent Greenfield, a law professor at Boston College Law School, told Business Insider that is a possible outcome on Monday, but he predicts that the court will "reverse and remand." That's court speak for telling the Appeals Court they decided it wrong and need to fix it. "My sense of that case is that it's unlikely to announce any huge rules of law," Greenfield said. "My guess is that either it's going to announce that these restrictions are undue burden, holding in favor of women seeking abortions ... or there's some kind of middle-ground compromise that will be laid down."

Sending the case back to the Fifth Circuit could work as a delay tactic while waiting for a ninth justice to be confirmed, but it would also leave millions of Texas women's healthcare in legal limbo, even with a stay in place. To ensure all women in Texas have safe and legal access to abortion, HB 2 must be struck down.