Texas Abortion Case Might Be the Next Big Supreme Court Abortion Ruling

Planned Parenthood v. Abbott, a/k/a the "Texas Abortion Case," might be the fodder for the Supreme Court's latest pronouncement on abortion. Let's start with the "might": the Supreme Court only takes those cases that it wants to hear (granting a writ of certiorari, in the jargon), so there is the possibility that it could turn down Planned Parenthood's request that it hear the case. However, I think SCOTUS may very well have its hand forced to take the case.

A 10,000-foot background: after passing what many liberals considered draconian abortion legislation -- legislation that would effectively shut down approximately one-third of all abortion clinics in the state -- Planned Parenthood, among others, filed suit in federal district court in Austin to prevent the law from taking effect. Judge Lee Yeakel, who was appointed by Bush II, agreed and issued an injunction, preventing the law from taking effect. The State of Texas (Abbott) appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit, in a decision made by three female judges all appointed by George W. Bush, disagreed with the trial court and reinstated the law. It appears that Judge Yeakel felt constrained by precedent (he's a lower court judge), while the Fifth Circuit flexed its conservative muscles.

(As it stands right now, the Fifth Circuit has set oral argument on the case for January 2014, while Planned Parenthood has taken the relative rare step of asking Justice Scalia to overturn the Fifth Circuit's decision (which would reinstate the injunction by Judge Yeakel; each Supreme Court justice is assigned to a different court of appeals and Scalia oversees the Fifth Circuit). Scalia has given Abbott until November 12 to file a brief responding to Planned Parenthood's requests.

With that background in mind, here's why the Court will probably hear the case -- maybe not this term (though it's possible), but likely next term. Federal district court judges in Wisconsin, North Dakota, Alabama and Mississippi have all struck down laws similar to Texas'. While none of these cases have had a court of appeals rule on those rulings (the Fifth Circuit has jurisdiction over Mississippi), it is likely one will. And it is also likely that one of those courts of appeal will disagree with the Fifth Circuit -- I do not think it's debatable that the laws are unconstitutional under current Supreme Court precedent. This would create a "circuit split," which weighs heavily toward the Supreme Court stepping in saying who is "right."

And that brings us to this: what if it does make it to the Supreme Court? The law will likely be struck down with Justice Kennedy providing the "winning" fifth vote. As you will recall, the Supreme Court reviews abortions regulations to determine if they are an "undue burden" on a woman's right to an abortion. If they are "undue," they're unconstitutional (and vice-versa).

Professor Brannon Denning, who teaches constitutional law at Samford University, told me: "I've never thought that 'undue burden' was much of a standard. Seems to me more of conclusion, which, of course, makes it perfect for Kennedy." That is, Kennedy will find it easy to strike down the Texas legislation. (For what it's worth, I share Professor Denning's aversion to Justice Kennedy).

It's been a while since the Supreme Court weighed in on abortion. The Texas legislature may have sped up that clock.

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