(Story was updated at 4:59 p.m. ET)
Supreme Court Justice Anthony Kennedy appeared to signal Wednesday that Texas is unlikely to score a clear victory in a case challenging its restrictions on abortion clinics as creating an undue burden on access to the procedure. But the clinics that brought the case may not completely win either.
Kennedy, considered the swing vote, seemed skeptical of the law's supposed benefits during oral arguments (PDF) Wednesday. But he also asked an attorney for the clinics whether it would be appropriate to send the case back to a lower court to ferret out more of the facts related to the issue. Justice Samuel Alito also suggested that the lower court should have decided which parts of the Texas law were reasonable and which were not.
It's possible the justices could issue a mixed opinion, said Matthew Clark, senior counsel for digital advocacy with the American Center for Law and Justice, which filed a brief supporting Texas in the case. The justices could, for example, affirm some parts of a lower court's ruling upholding the Texas law, reverse some parts, and/or send some parts back to the lower court for reconsideration, he said.
It's a case with major implications for how states across the country regulate abortion.
The case, Whole Woman's Health v. Hellerstedt, centers on whether a Texas law unconstitutionally limits access to abortion by requiring doctors at abortion clinics to have admitting privileges at local hospitals. The law also demands that clinics meet the same standards as ambulatory surgical centers.
The abortion clinics that brought the case say the law (PDF) will lead to the closure of 75% of the state's abortion clinics, leaving some women hundreds of miles from providers. The clinics argue that the procedure is already a relatively safe one, and the law's requirements are meant to limit access to abortion. They say the law unconstitutionally places an undue burden on a woman's right to get the procedure.
The state, however, maintains that the law (PDF) is aimed at protecting the health of women who undergo the procedure. They say if the law takes effect, every metropolitan area that now has an abortion clinic will still have one.
Though Kennedy mentioned sending the case back to a lower court, he gave those backing the abortion clinics some hope.
Kennedy noted Wednesday that medication-induced abortions are up nationwide, except in Texas where they've decreased and surgical abortions have increased.
“This may not be medically wise,” Kennedy said.
If Kennedy sides with the court's four liberal-leaning justices, the abortion clinics will win the case. But if he sides with the three conservative-leaning justices, the court will split 4-4, meaning a lower court's decision—upholding the Texas law—will stand. It's also possible the justices could choose to re-argue the case in the future after a new ninth justice joins the court. The death of conservative Justice Antonin Scalia in February left an open seat on the court and Republican leaders of the Senate have vowed not to consider anyone nominated by President Barack Obama in his last year in office.
It's highly unlikely a majority of the eight justices will vote to uphold the Texas law, said Michael Dell, a partner at Kramer Levin Naftalis & Frankel who filed a brief in the case on behalf of 10 women who've had abortions, siding with the abortion clinics.
Dell said Kennedy seemed undecided during oral arguments, but: “I'm not discouraged on an overall basis by Justice Kennedy. Hopefully he'll come out the right way.”
There was little doubt after Wednesday's arguments where the other justices stood.
Chief Justice John Roberts and Justice Samuel Alito questioned whether there's evidence to tie the closure of a number of abortion clinics to the Texas law.
Justice Elena Kagan, however, noted that a dozen clinics closed when the law went into effect and then when the law was suspended they re-opened immediately. She called it “the perfect controlled experiment as to the effect of the law.”
Justice Stephen Breyer asked the attorney for Texas to show him where in case record could he find examples of women, before the law was passed, who had complications during abortions and then could not get to a hospital because the admitting privileges requirement was not yet in place. Scott Keller, solicitor general of Texas, responded there are no such examples in the record.
Kennedy also questioned whether the intentions of Texas lawmakers should be considered.
If Kennedy believes the intentions behind the law matter, that could be more bad news for Texas in the case, said Elizabeth Sepper, an associate law professor at Washington University. “If what Texas is trying to do is further health, this looks like a solution for which there is no problem,” Sepper said of the law.
It's entirely possible the justices could end up making a compromise decision in which, to get a fifth vote, the justices interested in overturning the law agree to remand, or send some of the case back to the lower court, Dell said.
Remanding the case might be a particularly appealing option for the justices given some of the procedural and other questions raised during oral arguments about the case, said Robin Fretwell Wilson, a law professor and director of the Family Law and Policy Program at the University of Illinois at Champaign-Urbana.
The justices may decide that “None of this is ever going to lay to rest the cultural war around abortion, but this would be the wrong vehicle to do this.”
A decision in the case is expected in late June.