With the death of Supreme Court Justice Antonin Scalia less than three weeks ago, the Supreme Court has only eight justices opening the way for a 4-4 tie in what many see as the biggest abortion case in a generation. Such a tie could leave in place a lower court ruling largely upholding the Texas law, potentially impacting other states in the same appeals court circuit—Mississippi, which has just one abortion clinic, and Louisiana, where a similar admitting privileges law threatens to close all but one clinic in the state. During the arguments, the three women on the Supreme Court led the criticism of the Texas abortion restrictions. Ruth Bader Ginsburg questioned Texas’ argument that the restrictions don’t create an undue burden because women can travel to a clinic across state lines in New Mexico, where the same restrictions are not in place. "That’s odd that you point to the New Mexico facility," Ginsburg said. "If your argument is right, then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico … and that’s perfectly all right." We speak to Jessica Mason Pieklo, senior legal analyst and vice president of Law and the Courts at RH Reality Check.
NERMEEN SHAIKH: During Wednesday’s arguments, the three women on the Supreme Court led the criticism of the Texas’s abortion restrictions. Justice Ruth Bader Ginsburg questioned Texas’s argument that the restrictions don’t create an undue burden because some women can travel to a clinic across state lines in New Mexico, where the same restrictions are not in place. Quote, "That’s odd that you point to the New Mexico facility," Ginsburg said. "If your argument is right, then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico … and that’s perfectly all right."
AMY GOODMAN: Joining us now is Jessica Mason Pieklo. She is senior legal analyst and vice president of Law and the Courts at RH Reality Check, co-author of Crow After Roe: How "Separate But Equal" Has Become the New Standard in Women’s Health and How We Can Change That.
Welcome to Democracy Now! The significance of what took place yesterday in the Supreme Court and these arguments, the questioning by the Supreme Court justices, Jessica?
JESSICA MASON PIEKLO: Yes, the questions are very significant. I think we see that the presidential elections matter. The female justices were all over the attorneys from Texas in terms of their purported reasons for supporting the law as a health and safety regulation, when it clearly, from those justices’ perspective at least, was not rising to that level.
NERMEEN SHAIKH: And, Jessica, could you explain what the potential outcomes are, given the eight-member Supreme Court at the moment?
JESSICA MASON PIEKLO: Sure. So, we have a couple of different options. As you mentioned in your introduction, one is the possibility of a 4-4 tie. And should the justices split four to four, what that would do is likely leave in place the Fifth Circuit decision that has allowed most of these regulations to go—to take effect. Should the court tie 4-4, there is a probable—there is a good chance that they will probably try to rehear the case in the following term, when they have, hopefully, all nine justices. So that’s one—so that’s one option.
Of course, Justice Kennedy could decide to side with the liberal justices, and there were some questions in the argument that suggested he was at least considering that, in which case the Fifth Circuit decision would be overturned. Or there’s the possibility of them kicking it back down to the Fifth Circuit with some specific questions and saying, you know, "We would like some more evidentiary fact finding with regard to, say, the ambulatory surgical center provisions." If that happens, I would suspect that the Supreme Court leaves in place the order that is currently preventing the law from taking effect as widely as it would, should they decide to uphold the Fifth Circuit completely.
AMY GOODMAN: And, Jessica, how will this case affect other cases before the Supreme Court, on Mississippi and Louisiana? Louisiana has a case before the court that could close all but one clinic.
JESSICA MASON PIEKLO: Yeah, so the state of Louisiana’s response to the Supreme Court was due yesterday. And there’s an emergency petition, because, similar to Texas, the Fifth Circuit decided to overturn a district court order blocking these provisions in Louisiana and say that they should take effect while the appeals process takes place. And that’s an important thing because, as we’ve seen an Texas, it is very difficult to reopen clinics once they close, which is exactly the point of these kinds of laws. So the Supreme Court has to decide what it’s going to do with Louisiana.
Meanwhile, you mentioned Mississippi, also which is part of the Fifth Circuit. The Supreme Court is still sitting on a case, Jackson v. Currier, which is challenging similar restrictions and, if they go into effect, would close the state’s only clinic. In that case, the Fifth Circuit ruled that the Mississippi law should not take effect, because of that very fact that it was designed to close the only clinic.
So, the Fifth Circuit has made a mess of the law in its own area. Meanwhile, other circuits have refused to let these laws take effect. The Seventh Circuit blocked a similar measure in Wisconsin. And so, one of the reasons that the Supreme Court is going to have to eventually—if not in this case, in the next one—decide this issue is because we have in this country right now a patchwork of laws and access for women. Some women can access abortion clinics and care when they need it, and many, many cannot.
AMY GOODMAN: Jessica Mason Pieklo, we want to thank you for being with us, senior legal analyst and vice president of Law and the Courts at RH Reality Check, co-author of Crow After Roe: How "Separate But Equal" Has Become the New Standard in Women’s Health and How We Can Change That.
Coming up, "The Libyan Gamble." The New York Times has just published a major two-part exposé on how Hillary Clinton, as secretary of state, pushed President Obama to begin bombing Libya five years ago this week. We’ll speak with the reporter Scott Shane. Stay with us.