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Whole Woman’s Health Politburo Watching



We haven’t done a lot of this for the Supreme Court term wrapping up tomorrow, so to honor Lyle Denniston leaving SCOTUSBLOG, here are the possible outcomes in the biggest remaining case in the ascending order of probability as I see it:

  • 4-4 one liner. A one sentence per curiam, like the Court issued last week in U.S. v. Texas, by an evenly divided Court allowing the Fifth Circuit opinion to stand. I think this is very unlikely, for two reasons. First, if this was the outcome the opinion probably would have already been issued. And, perhaps more importantly, I can’t see the liberal faction of the Court allowing the draconian abortion restrictions in Texas and Lousiana to stay in force without commentary.
  • 4-4 with opinions. Kennedy still can’t find any regulations that constitute an “undue burden” under the rather awful plurality opinion he helped write. At least one liberal justice — most likely RBG or Kagan — really lets him have it in a dissent. Kennedy either defends himself or hides under Alito’s robes. A little more likely than a silent deadlock — I don’t have much faith in Kennedy on abortion cases — but I think it’s more likely that he has been pushed too far this time.
  • 5-3 liberal victory. In a reprise of Fisher II from last week, Kennedy can’t stomach the bad faith with which contemporary Republicans have treated Casey, and provides a fifth vote to strike down most or all of the Texas statute. Kennedy’s opinion makes it very clear that the law offends the dignity of women seeking to obtain an abortion in Texas and makes what standard the Court should apply to abortion regulations going forward even less clear. Alito writes a faux-minimalist dissent arguing that the statute is consistent with Casey as Kennedy has previously interpreted it that is as least twice as long as Kennedy’s opinion. Thomas writes a short solo concurrence arguing that Roe needs to be nuked from orbit just to be sure.
  • 5-3 mixed bag. Kennedy finds some but not all of the key parts of the Texas statute unconstitutional. In this scenario, the liberal justices who have been content to let Kennedy speak for the Court if he votes correctly might write one or multiple concurrences/dissents underlying the stakes, plus you’d probably get Alito and Thomas opinions comparable to those above.

I’d say the last two are comparably likely. This doesn’t exhaust every single possibility, of course. Roberts might also write, and I suppose there’s some chance under scenario four that he could join Kennedy, although I doubt it. But I think these are the most likely ways it plays out.

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