WASHINGTON – The abortion debate is returning to a recast Supreme Court that now may be tilted against the restrictive Texas law in question.
And the resolution probably all comes down, once more, to 79-year-old Justice Anthony Kennedy.
In a highly anticipated, hourlong oral argument set for Wednesday morning, the court will consider a challenge to a 2013 Texas law governing abortion clinics. Whatever the law's intent, it effectively restricts abortion providers and hinders women seeking to end their pregnancies.
The late Justice Antonin Scalia almost certainly would have voted to uphold the law. With his death, the high court's eight remaining justices could end up tied, an outcome that would keep the law in effect, or they could be stacked, ever so slightly, in favor of overturning the law, ruling for the abortion-providing clinics that have challenged the restrictions.
Predicting Kennedy's vote is tricky. In 2007, he wrote the opinion upholding a federal ban on so-called partial-birth abortions. But in 1992, he joined a ruling restricting how a state can regulate abortion clinics, and some close court-watchers predict he will do so again.
"The big question is whether Justice Kennedy will hold the line," attorney and Supreme Court practitioner Lori Alvino McGill said. She said she thinks Kennedy will find the Texas law imposes an undue burden on women.
At the same Georgetown University Law Center briefing, attorney and SCOTUSblog founder Tom Goldstein agreed that "the wind is in the sails" of those opposing the Texas law.
Still, with Scalia now gone, the dynamics of the court could shift. This case, now called Whole Woman's Health v. Hellerstedt, marks the first time in nine years that the Supreme Court has directly considered an abortion law.
