Can The SCOTUS Abortion Decision Set A Precedent? Yes, But There's One Small Catch

Proponents of abortion access won a huge legal victory on Monday, as the Supreme Court struck down two key elements of a Texas abortion law which heavily restricted access to the procedure across the state. This will have an impact on abortion rulings across Texas, and will likely result in similar laws being struck down as well. But does the SCOTUS abortion decision set a precedent?

The short answer is yes, but there's one small catch. The Texas law has been struck down, and in all overwhelming likelihood, similar abortion restrictions in other states will soon fall as well. But that won’t necessarily happen immediately, and there could be some bumps in the road.

“If there are any lower courts who had been inclined to uphold similar regulations, they will likely now get the message from the Supreme Court decision,” Gregory Lipper, former Senior Litigation Counsel at Americans United for Separation of Church, tells Bustle. “If there’s anything contrary that comes up, the likely outcome, if the laws are similar, is that the Supreme Court will grant review, vacate, and send it back for them to consider.”

Texas law HB2 prohibited physicians from performing abortions until they obtained admitting privileges from a nearby hospital, and required abortion clinics to be certified as ambulatory surgical centers. The high court found that this placed an undue burden on women seeking abortions without providing any medical benefit, and were thus unconstitutional.

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Monday’s rulings did indeed set a precedent. These abortion restrictions have been abolished in Texas, and at least in theory, no such law will be allowed to stay on the books in the other states that have similar abortion restrictions.

However, the SCOTUS decision didn’t directly strike down or invalidate those other states’ laws. It did, however, greatly increase the likelihood that lower courts will rule against similar restrictions. Plenty of Texas-style laws are being challenged in other states, and now the activists challenging those laws have robust legal precedent on their side in the form of a Supreme Court ruling. Lower court judges will probably accept this precedent.

However, the language in every state’s statutes is slightly different. Those linguistic differences matter, and this is why Texas-style laws across the country aren’t guaranteed to fall -- at least, not immediately.

“It’s theoretically possible that there will be [another state law] not quite as onerous as Texas’ that a lower court will uphold and that the Supreme Court might not immediately vacate,” Lipper says. “But I think that as a practical matter, this is a pretty strong precedent that, unless there’s some showing beyond what there was here, these admitting privileges rules and ambulatory surgical center rules are unconstitutional.”

If a court attempted to violate the precedent of Monday’s ruling by upholding a law similar to HB2, Lipper says that the likely outcome is that the Supreme Court would side with the challengers and issue an injunction against the lower court’s ruling.

Lastly, the empty seat on the Supreme Court wasn’t relevant in this case, at least insofar as the precedent goes. Had the court reached a 4-4 tie, no precedent would have been set. But this was a 5-3 ruling, meaning it wouldn’t have been affected one way or the other by an additional justice’s vote, so a precedent was indeed set. SCOTUS was pretty clear that these laws, as crafted, are not constitutional. Texas-style restrictions might not disappear overnight, but in all likelihood, it will only be a matter of time until they're gone.