Scalia's Death May Mean Texas Abortion Case Won't Set U.S. Precedent

By Jennifer Ludden

Published February 15, 2016 at 5:35 PM EST

An American flag flies at half-staff in front of the U.S. Supreme Court building in Washington to honor the late Supreme Court Justice Antonin Scalia.

The U.S. Supreme Court next month is scheduled to hear its biggest abortion case in at least a decade, and the reach of that decision is likely to be impacted by the absence of Justice Antonin Scalia, who died over the weekend.

A Texas law requires that doctors have local hospital admitting privileges and that clinics make costly building upgrades to operate like outpatient surgical centers. Numerous other states have passed similar laws, and Scalia was widely expected to provide a fifth vote to uphold such restrictions.

Without him, it may not change much for Texas. A 4-4 split in the court would leave in place the 5th Circuit Court of Appeals ruling that upheld these provisions. Ilyse Hogue of NARAL Pro-Choice America says that would shut down a number of clinics that perform abortion. And she says that would come in addition to other Texas restrictions that have already closed about half the state's clinics, leaving some women to travel hundreds of miles to obtain an abortion.

"We would be looking at an even greater health care crisis in Texas than we're already facing," Hogue says.

But a split decision in the Supreme Court would have no national precedent. That means other appeals court rulings striking down similar laws would also stand. And Hogue says there are more cases to come.

"I think this vacancy is far, far greater in terms of its implication than this one case in Texas," she says. "There are so many laws looking to restrict not only abortion access and abortion rights but a broader set of reproductive rights in front of the court right now."

One of them also comes up next month, when the court hears a challenge to the Affordable Care Act's mandate on covering birth control for female employees.

There's also been a wave of abortion restrictions passed since Republicans took control of numerous statehouses in 2011, and many of those cases are wending their way through the appeals courts. Abortion opponents had been hoping to have them affirmed by the Supreme Court, with the help of a great ally in Scalia.

"He was one of the two justices on the court who has publicly opposed Roe v. Wade in prior cases and prior votes," says Clarke Forsythe, senior counsel with Americans United for Life. "And he was probably the most vocal and long-standing, having been there since 1986."

Scalia had said that since the U.S. Constitution does not recognize a right to abortion, neither should the Supreme Court. The issue, he wrote, should be left to the states.

Now, if the court flips to a liberal majority, Forsythe foresees a large-scale rolling back of decades of abortion restrictions. He can imagine justices overturning the ban on public funding for the procedure. That ban is known as the Hyde Amendment, something presidential candidates Hillary Clinton and Bernie Sanders have both vowed to overturn.

Forsythe also thinks a liberal Supreme Court "will probably throw out all parental notice and parental consent laws in the country, will throw out all informed consent laws in the country, and virtually any regulation, and create an absolute right to abortion for any reason at any time that we haven't seen in 42 years."

Abortion rights groups say all that is speculation at best. But with so much at stake, both sides of this contentious issue say they're throwing themselves into the fierce battle over choosing Scalia's replacement.