Conservatives have lost their chance for big Supreme Court wins on some major abortion and birth control questions this year, with the death of their most reliable justice.
Before Justice Antonin Scalia died on Feb. 13, conservatives were holding out hope that he and the court’s other right-leaning members would issue sweeping rulings upholding new abortion clinic regulations around the country and exempting religious nonprofits from a mandate to provide workers with insurance covering contraceptives.
Instead, they are whittling down their expectations of how the court might land on those two questions, now that the court is composed of three conservatives, four liberals and moderate Justice Anthony Kennedy.
“It’s impossible to overstate how significant this term was, and I think the cause of constitutionalism has been dealt a serious blow by Justice Scalia’s loss,” said Carrie Severino, policy director at the conservative Judicial Crisis Network. “Not just because we lose him as the leader of the charge for restoring and defending the Constitution, but because of the cases this term he will not be able to participate in.”
“Conservatives have lost a potential big victory,” said David Cohen, a law professor at Drexel University who sits on the boards of several abortion rights groups.
With Scalia on the bench, the court might have dramatically expanded states’ ability to regulate abortion providers by issuing a broad ruling in the case Whole Women’s Health v. Hellerstedt. Under that scenario, Kennedy would have sided with the conservatives in a sweeping opinion upholding not just a Texas law requiring stricter facility standards and hospital admitting privileges, but also similar laws around the country.
Now conservatives’ best hope is for a 4-4 decision upholding just the Texas law. In that scenario, the decision by the U.S. Court of Appeals for the 5th Circuit upholding the law would stand, but it would apply only in Texas, without setting broad legal precedent.
“It would be almost as if the Supreme Court had not really taken the case at all,” Severino said.
It’s a similar story with challenges to the Obama administration’s birth control coverage requirements, from which some Catholic and evangelical nonprofits want to be completely exempted. If the court issued a 4-4 opinion, each of the seven plaintiffs in Zubik v. Burwell would have to abide by decisions from lower appeals courts siding against them.
Only one federal appeals court, the 8th Circuit, has ruled against the administration’s “accommodation” from the mandate that the nonprofits are challenging. And the plaintiffs in that ruling aren’t among the seven cases being considered by the Supreme Court.
Under the “accommodation,” nonprofits opposed to birth control or certain types of it must allow a third party to provide it for their workers, an approach they say still violates their religious freedom.
For liberals supporting abortion rights and the birth control requirement, their prospects have changed much less and may have even improved. They still have the possibility for sweeping decisions in their favor.
“That, I think, is the big upshot here,” Cohen said.
The court is scheduled to consider challenges to the Texas abortion regulations and the contraception mandate in March. With Scalia’s absence, the court will comprise just eight justices then and likely for the rest of the year, as Senate Republicans have vowed they won’t consider a nominee from President Obama.
The remaining justices could decide to delay any of the oral arguments until Scalia is replaced, although that scenario isn’t likely.
What’s more likely is the court will issue a split decision on one or both cases, remanding them back to lower courts and motivating the plaintiffs to try for another hearing in the future. Or Kennedy could side with the liberal justices and issue broad decisions striking abortion regulations everywhere and upholding how nonprofits must comply with the birth control mandate.
Either way, the scenario is much more dismal for conservatives now than earlier this month.
“Our office will continue litigating the important cases we have before the court” is all Cynthia Meyer, spokeswoman for Texas Solicitor General Scott Keller, would say. Keller will defend the Texas law before the court March 2.
“You can certainly make your arguments and hope the remaining justices will agree with those arguments,” said Casey Mattox, senior counsel with Alliance Defending Freedom, a group representing some of the plaintiffs in the birth control challenge.
“At this point, that is what you have to continue to do.”
