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How to read Justice Kennedy's abortion politics tea leaves

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As the Supreme Court heads into its final day of announcing this session's decisions, one headline case remains — Whole Woman's Health v. Hellerstedt, more popularly recognized as the Texas abortion case.

Unlike most cases that the Court hears, the events leading up to and surrounding this one have been garnering national attention since 2013 when Texas state Sen. Wendy Davis staged a filibuster attempting to stop the now disputed regulations known as House Bill 2 (HB 2). The regulations have placed Texas among a collection of states pushing the limits of what the Court has deemed permissible by banning abortion at 20 weeks and imposing what are known as targeted regulations of abortion providers, or TRAP, laws.

HB2 requires that all abortions — surgical, medical, and pill-induced —” be performed in centers that meet ambulatory surgical center standards, and thus they force many clinics to close without directly banning abortion. As such, they represent the leading edge of how anti-abortion activists have been chipping away at abortion access for decades.

The prevailing opinion regarding the outcome of Whole Woman's Health has been that everything rides on Justice Kennedy. Popular opinion leading into the argument projected a 4-4 tie, with the four liberals on one side equally balanced by the three conservative justices who were expected to be joined by "swing Justice" Kennedy, on the other side.

During oral arguments, however, Kennedy posed a question about the possibility that Texas was imposing an unconstitutional burden on women seeking abortion, raising the possibility that he might side with the liberal justices in a 5-3 decision. So goes the tea leaf reading. While still speculative, there is yet another reason to consider as to why Kennedy might side with the liberals —” the combination of presidential politics and the Court's history of trying to avoid the political spotlight.

If Kennedy sides with the remaining conservative justices in upholding all or part of the Texas regulations, the ruling will only have immediate effect in Texas, Louisiana, and Mississippi — the three states included in the Fifth Circuit that first heard Whole Woman's Health. This means the Court will likely have to again hear a related case in order to settle the larger questions posed in the current dispute. With the Court's temporary block of Louisiana's closely related abortion regulations, that case is potentially waiting in the wings to be heard and to again drag the Court into the politics of abortion.

While the Court has periodically heard and decided major abortion cases, it has a history of trying to avoid contentious political issues like abortion. Before the Fifth Circuit broke with lower court rulings against similar abortion regulations to the ones now under review, the Court had been able to stay out of the central conflict in abortion politics. There is little to no reason to believe that the justices are now eager to engage with a string of abortion cases. If Kennedy forces a 4-4 split in Whole Woman's Health, however, they will likely have to.

Beyond a general apprehension to engage with contentious political issues, there is the matter of what stands to be gained by siding with Texas today, given the prospect of the coming presidential and Senate elections. While nothing is certain, much seems to point to the Democrats winning the presidency. While still less certain, there are also reasons to believe that the Democrats could possibly also take control of the Senate.

If Hillary Clinton does win —” with or without the Democrats controlling the Senate — that translates to the Democrats taking the lead in filling Justice Scalia's empty seat on the bench with a justice who would most likely side with clinics over states trying to restrict access to abortion.

Restated, what would be gained by holding out on the national questions posed in Whole Woman's Health if the likely follow-up case would result in a 5-4 ruling against states looking to further restrict abortion access? Faced with those prospects, there is a compelling reason for the "swing justice" to land with the liberal justices in a 5-3 decision now against Texas's abortion regulations, thus sparing the Court from another round in the abortion politics fray.

Like all other predictions, though, this is just speculation. The Court has not shied away from 4-4 decisions or from hitting "pause" on other contentious issues in the wake of Scalia's death (e.g., returning the most recent challenge to the Affordable Care Act, Zubik v. Burwell, back to the lower court). Kennedy and the Court will do what they will do. But by the same token, court watchers and political scientists will do as we will do while we all wait for the Court to act.

Joshua C. Wilson is an associate professor of political science at the University of Denver. He is the author of The New States of Abortion Politics and The Street Politics of Abortion: Speech, Violence, and America's Culture Wars.

This post is part of Mischiefs of Faction, an independent political science blog featuring reflections on the party system. See more Mischiefs of Faction posts here.

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