Here are five things to know about the Whole Women’s Health v. Cole hearing, which challenges a Texas law that would reduce abortion clinics in the state due to new requirements for physicians and the clinics.
1. The case likely rests on Justice Anthony Kennedy, who is typically the swing vote. Without Justice Scalia, Justice Kennedy’s vote holds even more weight. If he votes with the court’s liberal justices, the case would be decided to protect access to abortion. If he votes with the conservative judges, the case would tie 4-to-4. This means the lower court ruling is upheld, unless the justices decide to re-argue the case.
2. The crux of the case lies in two separate but related questions. Chief Justice John G. Roberts Jr., suggested the two questions are if Texas presented a reasonable justification for the law and if the law creates an unconstitutional burden on those who want abortions, according to The New York Times. Justice Kennedy posited that these questions are related because the burden will be weighed against the justification for the law.
3. Justice Kennedy said it would be helpful to return the case to the lower courts to develop more evidence on how many abortions could be performed if the Texas law were to become effective. Under the law, abortion clinics in the state would be reduced from about 40 to 10 statewide. According to The New York Times, this call for more evidence from the lower court would lift a stay issued in June on the law, which would force about 10 clinics to close. Justice Kennedy voted with the court’s liberal wing to put the initial stay in place, according to the report.
4. The justices also debated if the law were to go into effect, whether the remaining clinics would be able to handle the 65,000 to 70,000 abortions performed annually in Texas. Solicitor General Donald Verrilli Jr., who was arguing in support of the abortion clinics, said those that would remain open perform about 14,000 abortions annually, or about 20 percent. However, Texas lawyer Scott Keller said one clinic in Houston can do about 9,000 abortions per year, and with that number the remaining clinics would be likely to handle the potential capacity, according to The New York Times. Justice Elena Kagan also brought up concerns about how far women would then live from the clinics, stating that about three-quarters of a million women would be living more than 200 miles from a clinic, according to the report.
5. A decision will likely come in June, according to The New York Times.
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