Hello there, fellow law nerds!
We here at Team Legal are on pins and needles waiting for the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, the biggest abortion case to hit the Court’s steps in more than a decade.
Before the Roberts Court are two provisions of Texas’ HB 2, the anti-abortion omnibus bill that has been the sustained focus of legal challenges since 2013. One provision—currently being temporarily blocked in Texas—requires an abortion clinic to be outfitted with the same physical and professional requirements as ambulatory surgical centers (ASCs). The second requires any doctor performing abortions to have admitting privileges at a hospital within 30 miles of the clinic.
It’s a big deal. (If you’re not familiar with the case, check out this handy-dandy summary. You can also check out the timeline regarding the path HB 2 traveled to get from the Texas legislature to the Supreme Court. Team Legal put them together just for you, dear reader.)
One of our concerns is that we won’t get a majority opinion in Whole Woman’s Health, but rather be saddled with a plurality opinion.
But, you may ask: What the heck is a plurality opinion? Never fear. Team Legal has got your back.
First, let’s go through the various types of opinions Supreme Court justices may issue.
When the full Court—usually nine, although currently there are eight due to Justice Antonin Scalia’s untimely demise—agrees on how a case should be decided, then the decision is unanimous. More often than not, however, the Court cannot reach a unanimous decision. In such cases, when more than half of the Court agrees on how a case should be resolved, the majority opinion represents that view.
In other words, in the current makeup of the Court, an opinion upon which five or more justices agree is the majority opinion. The opinion explains the decision of the Court and the rationale behind its decision, including the law and how it applies to the case at issue. It is binding precedent, which means that all lower courts in the country must follow the law and rules it sets forth.
A dissenting opinion is one written by a justice who voted in the minority. It expresses that justice’s disagreement with the majority opinion of the court. A dissenting opinion, because it represents the minority opinion, is not binding precedent. Nevertheless, a dissenting opinion may form the basis of future court rulings, if the Court eventually decides that the majority opinion is wrong. A key example is Justice Hugo Black’s dissenting opinion in Betts v. Brady, a 1942 case in which the majority wrote that state courts are not required to provide an attorney to indigent defendants charged with felonies in non-death penalty cases. Twenty-one years later, the Supreme Court, using Black’s opinion as a basis, reversed course in Gideon v. Wainwright and held that state courts are required to provide such representation.
A concurring opinion results when a justice agrees with the outcome of the majority opinion, but not necessarily with the reasoning behind the majority opinion. It allows a concurring justice to offer a different legal reasoning for the case or to further explain the majority opinion’s legal reasoning. If there are four in the majority, and one concurring opinion, the controlling precedent is comprised of those places where the five agree.
A plurality opinion occurs when there is no majority opinion signed onto by five or more justices—when most of the justices agree on which side should ultimately win, but there is no majority agreement on the rationale as to why. Instead, the justices write several concurring opinions explaining their viewpoints. Sometimes justices will even sign on to one part of an opinion and not the other. If one of these opinions receives more votes than the others, that opinion becomes the plurality opinion. And that plurality opinion, no matter how confused, becomes precedent.
Generally speaking, plurality opinions are a clusterfuck. The point of the Supreme Court is that it is a judicial body through which nine justices speak as an institution. With a plurality opinion, there is no institutional groupthink: A plurality opinion simply represents the viewpoints of the individual justices who join in the opinion. It is more likely than a majority opinion to be a patchwork of confusing compromises.
As a result, a plurality opinion may not offer the sort of guidance that lower courts need, which leaves them twisting in the breeze trying to figure out what the law is.
Now that you know what a plurality opinion is, and how it differs from a majority opinion, a concurring opinion, and a dissenting opinion, I’m going to let Team Legal’s Supreme Court Whisperer, Jessica Mason Pieklo, take you through what all of this means for the upcoming decision in Whole Woman’s Health v. Hellerstedt.
Take it away, Jessica!
*hands mic to Jess*
In a matter of days, we are going to know whether the Supreme Court is going to endorse as constitutional some of the most onerous and punitive abortion restrictions we’ve seen yet. (Not to tempt fate, but we all know more are coming, because anti-choicers are nothing if not relentless.) And with a compromised Court of only eight justices split near-perfectly along ideological lines, many Court watchers have been talking about the possibility of a 4-4 split. That outcome would leave in place the nonsensical Fifth Circuit Court of Appeals decision that is largely responsible for decimating abortion access in Texas. In turn, access in most of the South could potentially be compromised. That’s a terrible outcome, and one I’m not going to talk about at the moment because the thought of it makes me want to run outside, load a kitten into a cannon, and fire it into the sun.
Instead, let’s talk about would happen if the Court issues a plurality decision in Whole Woman’s Health.
During oral arguments this past March, a couple of points became immediately clear. First, Justice Anthony Kennedy wants a way out of this case, and he wants one bad. Second, the liberal wing of the Court was like a dog on a steak on the issue of real-life effects of the Texas regulations, when compared to the purported health and safety concerns from the State of Texas. Texas, you see, has insisted that HB 2 is about protecting women’s health. But that’s crap—you know it and I know it. The law is a pretext for making abortion so impossible to obtain that it might as well be illegal.
In particular, Justices Stephen Breyer and Ruth Bader Ginsburg wanted data on the number of patients who had to leave the state to get an abortion, where they went, and why. These were important questions that attorneys for the State of Texas were not that keen on answering directly.
Presuming that Justices Elena Kagan and Sonia Sotomayor agree with their liberal colleagues—and given their questioning during oral arguments, that is a safe presumption—that means there are four votes to overturn the Fifth Circuit and hopefully strike the ASC and admitting privileges requirements as unconstitutional.
But none of that matters without a fifth vote. And based on years and years of precedent from the other justices, we know that fifth vote is going to be from Anthony Kennedy. During oral arguments, it was apparent that even Kennedy was uncomfortable upholding the Texas restrictions, which is a pretty big deal if you consider the fact he hasn’t voted to support abortion rights since the decision that got us into this whole mess, Planned Parenthood v. Casey. (Casey was a plurality opinion comprised of the opinions of Justices Sandra Day O’Connor, David Souter, John Paul Stevens, Harry Blackmun, and, you guessed it, Anthony Kennedy. Those five justices stitched together the practically unworkable undue burden standard that has let loose like the kraken in a horror show of anti-choice restrictions in the states nationwide.)
It’s difficult to imagine Kennedy fully joining his liberal colleagues in a decision that has the potential to call Casey into question, given that it is one of the cornerstone cases often used to make the argument that Kennedy is a moderate and a pragmatist. Maybe he will! After all, he surprised us with his opinion in Fisher v. University of Texas, so anything is possible.
Instead, though, maybe Kennedy writes his own opinion—one that agrees with the liberal wing’s likely outcome, which is that the Fifth Circuit got the analysis wrong. That would give our side five votes to reverse the Fifth Circuit’s decision. Hooray! But given his clear discomfort with abortion rights and politics, maybe Kennedy uses his opinion to craft some gobbledygook legal standard, like he did with Casey, and which he could likely get at least some of the other liberal justices to sign off on in part. The result could still undermine abortion rights, but would allow Kennedy to avoid having to stand alongside Justice Samuel Alito, who is basically looking for any chance he can to gut gender equality writ large.
Should Kennedy do this, it would give abortion rights advocates a fifth vote against the Fifth Circuit, reversing its decision and handing a win to abortion rights advocates. But it would be a qualified win—because ultimately, to get that fifth vote, Kennedy is going to have to have a big say in the outcome.
That would leave us with a plurality opinion: The kinds of restrictions at issue in HB 2 are bad, but the Roberts Court just isn’t quite convinced how bad yet. And things could get even more confusing. For one, the Court could decide the surgical center requirement is unconstitutional but the admitting privileges is not, or vice versa. Or it could send the entire case down to the lower courts for more fact-finding, like in the first Fisher affirmative action case. Doing that would reverse the Fifth Circuit’s rulings—for the moment. But do any of us think more data on the number of poor patients affected by clinic closures is going to change the mind of the Fifth Circuit?
So dear reader, there you have it. You are now prepared to panic for the next three days until Monday, when the Supreme Court is expected to issue its ruling in Whole Woman’s Health. The lives of women in Texas literally hang in the balance, so make sure to stock up on whiskey. It’s going to be a bumpy ride.