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Divided High Court Gives Little Hint On How It Will Decide Abortion Case

Abortion rights protesters rally outside the Supreme Court in Washington on Wednesday.
Susan Walsh AP
Abortion rights protesters rally outside the Supreme Court in Washington on Wednesday.

Divided High Court Gives Little Hint On How It Will Decide Abortion Case
Divided High Court Gives Little Hint On How It Will Decide Abortion Case GUEST: Glenn Smith, constitutional law professor, California Western School of Law

I am Maureen Cavanaugh . Here are some of the stories were following. Less than two years after two women were awarded nearly $500,000 each in a sexual harassment case against PF Chang's restaurants in San Diego County, the companies facing another round of litigation. Or other women claiming they were sexually harassed elsewhere in Southern California are now being represented by a San Diego law firm. Scripps Health was ranked 42nd on Fortune magazine's list released today of the top 100 companies to work for. The only San Diego based employer to be included. And four more people in San Diego County have died from influenza related causes. That brings the total to 15 so far this season. Listen for the latest news through the day right here on KPBS. First in our headlines today the US Supreme Court heard arguments yesterday on its first major abortion case in a -- in years that has. It is the first major case the could feel the impact of the vacancy of the court. They heard instances of the Texas law that require all surgeons including clinic doctors must pass the minimum mandates. It is to ensure women's health. Some say they are necessary and will restrict access to abortion. Earlier today I spoke with Glenn Smith con constitutional law professor at California Western School of Law. Glenn, what are you talking -- hearing about how the arguments would be for the courts yesterday? People are noticing that several justices including Justice Kennedy seems to be looking for a way to resolve this issue. Perhaps, facing the schedule findings about the practical effect of this law in terms of the capacity of abortion clearance -- clinics are not clear enough and it should be remanded are sent back to the district court. This would effectively keep this law frozen for a year or two and put it off until perhaps there is a full complement of justices. Know when you say frozen, you mean it would not be enforced? Or just the Supreme Court rolling on it be in limbo? The Supreme Court last summer stayed or put on hold the green light that was given by the lower court, the Fifth Circuit court to allow this logical and effect. Most of the law is not in effect. The admitting privileges requirement does apply in a lot of Texas, but it does not apply in some places. And also is we talk about the very expensive clinic upgrade requirements those would be on hold as well. The negative -- some of the negative effects that the abortion rate advocates of Texas Air happening will continue, but at least the matter would not get worse until the matter came back to the court in a couple years. During a couple years as more information is compiled, if indeed this is what the Supreme Court asks, would that mean this is some sort of a reversal of the ruling on this? How do they actually procedurally go about that It means that the Fifth Circuit largely green lights the Texas law is on hold. It is -- it isn't a no formal reversal. We can't decide this. We need more information. But the law would be largely on hold and the negative effects of the abortion-rights advocates in Texas would at least be forestalled. It would go down to the lower court. The lower court would do its findings. Probably the lower court will see the effects of the first time and say have an undue burden. Most likely to Fifth Circuit would reverse that. So good down to the District Court up to the circuit court and then presumably come back to the Supreme Court if the Supreme Court hasn't taken another abortion case intake -- decided in the meantime. If indeed this is what this report does cut its looking at this in a limited way, it is said to have very broad implications if it is looked at in its fullness. Why is that? That is absolutely right. As you and I know from her past discussions trying to speculate, there is always different possibilities that some of them are. But if the court actually takes on the full implications what it could hold is for the first time really sense 1992 is the undue burden standard, the standard the court uses requires courts to look at not just with the burden of the law is on abortion-rights, what is the state really achieving its suppose at health benefits for women? Is the law counterproductive? It would get abortion-rights analysis. It would look at health effects, and the state register -- is the state legislature really accomplishing its women protective goal? With their predictions about how the late Justice Antonin Scalia would've voted? I think that is pretty easy to predict. He had a long-standing record taking that abortion laws should be treated like any other healthcare regulation as long as the state meets its very low standard of rationality it should be about. I think it is clear that had he been on the court, he would of voted to uphold Texas is law. Therefore if Justice Kennedy who is the shot caller in this case with others, if he went with the more conservative form can't you could hand -- have a uniform national holding against abortion-rights. That is not likely to happen. The only question is will we get a narrow ruling? Or will we get Justice Kennedy joining with the more liberal members to create a broadly abortion-rights protective ruling? Glenn can't have there been any changes in the dynamic of the Supreme Court in this very brief time since Justice Scalia has been gone? Back at the transcript Komori, from yesterday --, Maureen, from yesterday. In past cases he has been a very aggressive questioner of abortion-rights advocates and a strong Confederate of state authority. That was missing. Other justices played that role, but nobody did it the way he used to. That definitely was missing. I would say as a result we heard more of questions from the abortion-rights advocates especially the three women on the court. There are headlines earlier this week that Justice Clarence Thomas had asked a question. Tell us about that. He asked Ted questions, Maureen. He reversed his not making it -- not asking questions in a way. The argument was sending, and suddenly the voice of justice Thomas begins asking questions to the government attorney in a case involving whether a domestic violence misdemeanor ought to disqualify the defendant from holding a gun? You got not just one question, but 10 questions. It was a surprising development. There was a lot of speculation about is justice Thomas now feeling like it would be -- in the absence of Scalia that he needs to step in more and he will be doing it more? Or is that a one-off change? We will be watching for that as well and so many other things with the Supreme Court. Okay. I've been speaking with Glenn Smith with California Western School of Law. Thank you. Thank you.

After hearing oral arguments on what could be one of the most important abortion cases decided by the U.S. Supreme Court in decades, NPR's Nina Totenberg says that the only thing that is certain is that Justice Anthony Kennedy will cast the deciding vote.

As expected, Nina says, the three conservatives and four liberals on the court stuck to their positions for and against a Texas law that puts restrictions on abortions.

As Nina reported earlier today, the law requires all abortions — either surgical or medical, meaning with pills — to be done in ambulatory surgical centers. The law also requires doctors to have admitting privileges at a hospital within 30 miles of the clinic. The question before the court is whether these restrictions impose an "undue burden" on a woman's constitutional right to end a pregnancy.

Nina says that Kennedy floated the idea of perhaps punting on this case and sending it back to a lower court to gather more evidence on how the law has affected access to abortion in the state.

"The question is really are they going to decide this? Are they going to uphold the privileges requirement? Are they going to uphold the surgical center requirement? And the answer to that I do not know," Nina says.

Opponents of the Texas Omnibus Abortion Bill, known as HB 2, argued that since the law was passed in Texas the number of clinics that perform abortion dwindled from 41 to 19.

Nina says that the conservative justices wanted to know how opponents of this law knew that those clinics had shuttered because of the law.

"The solicitor general for example, noted that for at least seven of these clinics, they literally couldn't comply with the law, that in order to comply they would exceed the footprint of the land that the clinic is on," Nina says. "It was quite a passionate battle between the court's liberals and that includes the three women on the court, who were very vociferous, and the court's conservatives who would really love not be ruling on this at all. And I don't know where it's going."

Of course, another question is whether the court could end up at a 4-4 tie because of the death of Justice Antonin Scalia. Nina says that doesn't look likely, but if it did, it would mean that the Fifth Circuit ruling, which largely upheld the law, would stand. The ruling, however, would only be valid in the states under the Fifth Circuit's jurisdiction and a tie would lead to a patchwork of laws across the country.

"So eventually the Supreme Court is going to have resolve this," Nina says. "If it doesn't resolve it in this case, it's going to have resolve it at some point in the future."

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