- REUTERS/Kevin Lamarque
The Supreme Court is gearing up to make decisions on three major cases involving abortion, affirmative action, and immigration before its term ends in late June or early July.
The court is hampered by its lack of a ninth justice – Justice Antonin Scalia died in February, and Republicans in Congress have declined to consider Obama’s proposed replacement, Merrick Garland.
This has led to numerous ties and compromises, leaving broader legal questions largely unanswered.
The cases that remain on the docket this term may also end in stalemate or be delayed until the empty seat on the Court is filled.
Here are the controversial cases that the justices are set to decide in the next few weeks.
Whole Woman’s Health v. Hellerstedt
- REUTERS/Kevin Lamarque
Whole Woman’s Health v. Hellerstedt – the first major abortion case to reach the Supreme Court since 1992 – deals with a Texas law called House Bill 2, or HB2. Critics say the law limits a woman’s constitutional right to an abortion.
The law requires that all abortions take place in “ambulatory surgical centers,” or medical facilities that can accommodate low-risk surgery. It also mandates that doctors performing abortions have admitting privileges to a hospital within 30 miles of their clinic.
Creators of the law say it was designed to make abortions safer for women. But numerous medical organizations – including the American Medical Association, the American Academy of Family Physicians, and the American College of Obstetricians and Gynecologists – have called the restrictions “unnecessary” and “harmful,” pointing to the fact that abortions have been taking place safely in free-standing clinics for decades.
The Texas clinic Whole Woman’s Health is arguing that HB2 places an “undue burden” on women seeking an abortion. The Supreme Court in 1992 ruled that states could limit access to abortion unless the restrictions impose a “substantial obstacle” to getting an abortion before the fetus is viable.
If HB2 is upheld, about 75% of Texas’ abortion clinics will close, according to Whole Woman’s Health, leaving women in rural areas of the state hundreds of miles away from a clinic. Opponents of the law are citing lengthy wait times at the remaining clinics as the “undue burden.”
— Planned Parenthood (@PPact) June 19, 2016
The director of the state’s health department, John Hellerstedt, is arguing that the law aims to protect women who are seeking abortions by making sure that their providers are qualified to carry out the procedure and that they are close enough to a hospital if complications should arise.
The New Orleans Fifth Circuit ruled in HB2’s favor. If the Supreme Court rules 4-4, the law will be upheld. But if Justice Anthony Kennedy – the swing vote – sides with the four liberal justices, abortion-rights advocates will prevail.
Fisher v. University of Texas at Austin
Fisher v. University of Texas at Austin involves a woman named Abigail Fisher who is arguing that the University of Texas at Austin rejected her application because she is white. Her lawsuit claims that the university denied her a spot because of her race and that she was therefore denied equal protection under the law.
The University of Texas at Austin admits all Texan applicants who fall in a top percentage – usually around 10% – of their high-school class and uses a “holistic” process to fill the remaining spots. Fisher, whose father and sister attended the university, didn’t fall in the top group but contends that her other qualifications would have earned her a spot if she hadn’t been white.
Holistic admissions allow colleges to consider various subjective factors in selecting which applicants to admit, and they often take race into account, hoping to achieve a diverse student body.
The case dates back several years and supplies a major challenge to affirmative action in college admissions.
The Supreme Court heard the case in 2013 but sent it back to the federal appeals court that had ruled against Fisher, asking it to reexamine her argument. It heard the case again in December, and a decision is expected before the current term ends.
The case will be decided by just seven justices, leaving no possibility of a tie, since Elena Kagan recused herself after working on it as the US solicitor general. The decision could again depend on Anthony Kennedy, who has voted against affirmative action before but did not agree with Antonin Scalia’s wish to abolish it.
No matter the outcome, the ruling could affect the use of racial preference in college admissions for not just the University of Texas at Austin but other universities as well.
United States v. Texas
- Thomson Reuters
In United States v. Texas, the court will decide whether to uphold two executive orders issued by President Barack Obama in 2014: the Deferred Action for Parents of Americans of Lawful Permanent Residents and the expanded Deferred Action for Childhood Arrivals.
The measures are designed to prevent the deportation of immigrants living in the US without permission who were brought to the US as young children, as well as that of undocumented parents of US citizens and permanent residents who have been living in the country for some time.
Up to 5 million people are eligible for protection under these programs.
But the orders have been on hold since February 2015, when a Texas federal judge and the US Court of Appeals for the Fifth Circuit agreed to hear a challenge from 26 states. The challenge contested Obama’s authority to shield immigrants from deportation by issuing executive orders.
In April, the Supreme Court heard arguments from both sides.
Obama issued the executive orders after what he saw as inaction from Congress. If immigrants living in the US illegally get the protection he is calling for, they will have easier access to healthcare, education, and jobs.
The orders will stand if the Supreme Court rules in Obama’s favor. If the court rules against the orders, they will remain frozen. But if it’s a tie – a possible scenario now that there are only eight justices – the lower court’s ruling will stand and the orders will remain stalled.