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Scalia's death could affect upcoming SCOTUS rulings on contraception, abortion access

The recent death of Supreme Court Justice Antonin Scalia could affect several upcoming decisions from the high court, including rulings on the federal contraceptive coverage rules and abortion access, the New York Times reports (Liptak, New York Times, 2/14).

Scalia's passing means the court will have eight justices for the time being (Schencker/Rubenfire, Modern Healthcare, 2/13). While President Obama says he will nominate a replacement "in due time," Senate Majority Leader Mitch McConnell (R-Ky.) says the "vacancy should not be filled until we have a new president" (Hennessey/Cassata, AP/ABC News, 2/13).

Background on contraceptive coverage challenges

In November 2015, the Supreme Court announced it would hear a challenge to the federal contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148).

The rules require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement, and not-for-profits that hold themselves out as religious, as well as certain closely held corporations, are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees. Instead, employees will be able to receive coverage directly from their insurers. To claim the accommodation, the not-for-profits may either complete a form to send to the insurers or third-party administrators or send a letter to HHS stating that they object to offering contraceptive coverage in their health plans.

Not-for-profits that hold themselves out as religious and oppose contraception have challenged the rules in federal courts throughout the country. Most appeals courts have dismissed the challenges, finding that the federal rules do not impose a "substantial burden" on the religious beliefs of the not-for-profits. However, the 8th U.S. Circuit Court of Appeals in September 2015 upheld a ruling against the contraceptive coverage rules, countering all other rulings issued by circuit courts on the subject.

In agreeing to review the matter, the Supreme Court consolidated seven challenges to the rules into a single case, referred to as Zubik v. Burwell. The seven cases granted an appeal include: Geneva College v. Burwell, Little Sisters of the Poor v. Burwell, Priests for Life v. Department of HHS, Roman Catholic Archbishop v. Burwell, Southern Nazarene University v. Burwell, East Texas Baptist University v. Burwell and Zubik (Women's Health Policy Report, 11/9/15).

Background on abortion access challenge

The Supreme Court last year also agreed to hear a challenge to provisions in Texas' omnibus antiabortion-rights law (HB 2), which has already closed about half of the abortion clinics in the state. The high court will hear arguments in the case on March 2, which puts it on track to issue a final ruling in June.

The case, Whole Woman's Health v. Hellerstedt, centers on two provisions. One requires abortion clinics in the state to meet the same building standards as ambulatory surgical centers, and the other requires abortion providers to have admitting privileges at a local hospital.

The Center for Reproductive Rights (CRR), which represents the group of abortion providers challenging the law, argues that HB 2 is unconstitutional, creates an undue burden for Texas women who live far away from the nearest clinic and does not promote the state's interest in improving health. If the court upholds the law, the number of clinics will fall to about 10, compared with about 40 before the law took effect.

In June 2015, the 5th U.S. Circuit Court of Appeals upheld the law's ambulatory surgical centers provision and admitting privileges requirements except in the case of one clinic, Whole Woman's Health in McAllen, Texas. Later that month, CRR asked the 5th Circuit to stay the decision while the clinics appeal to the Supreme Court. The 5th Circuit rejected the request. CRR then filed an emergency request with the Supreme Court, and in late June the high court temporarily blocked HB 2's ambulatory surgical center requirement. There was debate about whether the high court's order also blocked the law's admitting privileges requirement (Women's Health Policy Report, 1/6).

How Scalia's death could affect SCOTUS rulings

According to the Times, Scalia's death could affect the rulings on the contraceptive coverage rules and abortion access because it changes the liberal-conservative makeup of the high court.

Prior to Scalia's death, the Supreme Court had four liberal justices, four conservative justices and one justice, Anthony Kennedy, who frequently provided the swing vote on closely divided cases. However, Scalia's death means the high court now has four liberal justices and three conservative justices. As a result, depending on how Kennedy rules on the upcoming cases, the liberal justices could issue a majority opinion or the Supreme Court could issue a 4-4 decision.

According to the Times, the Supreme Court could issue a 4-4 ruling on either or both cases, which would affirm the lower court ruling without providing reasons and without establishing Supreme Court precedent. Alternatively, the high court could schedule a case for re-argument in the next term, which begins in October, by which time the court might again have a full bench.

In Whole Woman's Health, a 4-4 decision would allow the 5th Circuit decision to stand and the contested provisions in Texas' antiabortion-rights law to take effect. However, the spilt ruling would not set a precedent regarding the constitutionality of such abortion restrictions. Abortion-rights supporters note that a vote on the Supreme Court stay issued earlier in the case indicates the possibility that at least five justices already might opt to vote against the restrictions.

In Zubik, a 4-4 decision would be more complicated, as it would leave in place a split in the circuit court rulings (New York Times, 2/14). In such a situation, the lower court rulings would all be affirmed, leading to different contraceptive coverage rules in different parts of the country (Modern Healthcare, 2/13).

Erwin Chemerinsky, the dean of the University of California-Irvine's law school, said such a result "may cause pressure to see if there is a way for [the justices] to come up with a majority or, if not, to put the cases over for re-argument" (New York Times, 2/14).