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In recent weeks, the race between U.S. Sen. Ted Cruz, R-Texas, and U.S. Rep. Beto O’Rourke, D-El Paso, has largely revolved around immigration, playing out in detention centers along the southern border and over immigration bills in Washington.

But U.S. Supreme Court Justice Anthony Kennedy’s abrupt retirement announcement Wednesday sent shockwaves throughout the country — and quickly turned the two Texans’ attention to the nation’s highest court.

“After today, this race to represent Texas in the Senate matters more than ever,” O’Rourke wrote on Twitter Wednesday.

“Fully agree,” Cruz replied Thursday in his own tweet. “And the overwhelming majority of Texans want Supreme Court Justices who will preserve the Constitution & Bill of Rights, not undermine our rights and legislate from the bench.”

The power of consent for Supreme Court nominees is one of the Senate’s greatest powers, and now — after a controversial change to Senate rules last year — the chamber’s Republicans have the numbers to potentially confirm a nominee over unified opposition from Democrats.

For Republicans, the Supreme Court vacancy represents an opportunity. For Democrats, it has inspired fear. And for the U.S. Senate race in Texas, it has already become a rallying cry.

The Texas Republican Party opened its latest fundraising email Friday morningwith a call for donations to Cruz in light of the court vacancy. A day earlier, Cruz’s campaign sent out its own pitch to supporters for funds to ensure Republicans retain their Senate majority.

“If we lose the Senate, we will lose the opportunity to approve the nominations of strong Constitutionalists to the Supreme Court and other important positions. This is why we need your support. These are the stakes,” the Cruz campaign email reads.

O’Rourke’s campaign, meanwhile, sent an email to supporters Thursday soliciting $3 contributions “to help our grassroots, people-powered campaign be a check on Trump’s Supreme Court pick.”

Though some Democrats have demanded the Senate postpone the vote until after the November election — pointing to Senate Majority Leader Mitch McConnell’s move to do just that in 2016 — McConnell has pledged to hold a confirmation vote ahead of the midterms. U.S. Sen. John Cornyn, R-Texas, said the vote will likely happen in September.

Republicans are banking on the Supreme Court vacancy to turn out far-right voters who see it as an opportunity to push a conservative agenda through the courts.

“I think it actually energizes the Republican base, it makes people feel united,” Republican strategist Brendan Steinhauser said. “People seem to be very fired up. It seems very positive for Cruz.”

Cruz told Fox News Thursday he thought 2016 was a litmus test of the Supreme Court’s importance to voters, suggesting that the death of Supreme Court Justice Antonin Scalia — which set off a more than year-long showdown in the Senate over Scalia’s successor — helped propel Donald Trump to victory.

“This was a major issue the American people decided,” he said. “It was a major reason that we have President Trump and we have a Republican majority in the Senate — because the American people want justices who will defend the Constitution, will defend the Bill of Rights.”

Cruz, who clerked for former Chief Justice William Rehnquist after graduating from Harvard Law School and later argued before the U.S. Supreme Court nine times, said on Fox that filling Kennedy’s seat “could prove to be the most significant thing the Republican Senate does.” He has begun promoting a handful of candidates for the job, including U.S. Sen. Mike Lee, R-Utah.

Cruz’s campaign did not respond to requests for comment.

If Republicans succeed in their plans to vote Trump’s nominee onto the court before November, O’Rourke has little chance of swaying the outcome of this confirmation process. In an interview Thursday, he distanced himself from Democratic leaders who are calling for delaying the vote.

“I don’t know that you want to set an arbitrary timeline on this. I just think, you know, the President should nominate and the Senate should do its due diligence,” he said. “My understanding is historically that would take you past the November election anyhow if the Senate were truly to do its due diligence.”

Instead, O’Rourke’s campaign is focusing on the importance of Democrats retaking the Senate and regaining control of the confirmation process for future nominees.

“The choice is clear: we can either have Ted Cruz or Beto in the Senate voting on Supreme Court nominees,” the O’Rourke campaign’s fundraising email said. “Someone who will vote for the agenda of special interests and corporations or someone who will vote for the people of Texas. We need to work every single day to cut Cruz’s narrow lead and ensure it’s Beto.”

O’Rourke campaign spokesman Chris Evan said the campaign will emphasize what O’Rourke would look for in a nominee down the line — namely, someone who supports civil rights, abortion rights, access to healthcare and ending partisan gerrymandering.

O’Rourke said he still doesn’t know where the Supreme Court ranks among issues on voters’ minds, so he will take their temperature at town halls across Texas in the coming week, starting with one Friday afternoon in San Antonio.

“We’ll see if these issues come up at the town halls. I’m assuming they will, but we’ll see,” he said.

On both sides, abortion may emerge as a particular flashpoint. The Supreme Court vacancy casts doubt on the future of the landmark 1973 case Roe v. Wade, which declared abortion a constitutional right. Kennedy cast several decisive votes to protect abortion rights over the course of his career, and a more conservative justice could spell the end of those protections.

The extent to which hopes and fears of repealing Roe v. Wade will translate into votes in November remains an open question, said former state Sen. Wendy Davis, whose famous filibuster of an anti-abortion bill in the Texas Senate in 2013 boosted her national profile, leading to a failed run for governor a year later.

“It depends on how many people make choice a central part of why they vote. Those who are opposed to abortion most certainly do. But many supporters continue to take for granted that they will always be able to access abortion,” she wrote in an email. “Will this recent development…be enough to motivate independent suburban women to vote with protecting abortion access in mind? Hard to say. But I certainly hope so.”

Anti-abortion activists in Texas and around the country are already seizing on Kennedy’s retirement as an opportunity to take aim at Roe v. Wade. During most election cycles, Texas Right to Life typically spends more on state legislature races than congressional ones, said legislative director John Seago. But Kennedy’s retirement will likely prompt the group to boost its intended advertising for Cruz. He predicted other groups opposed to abortion will do the same in the months to come.

“In his race with O’Rourke, the Kennedy retirement is just going to electrify the race even more,” he said.

O’Rourke, who has so far outraised Cruz, has pledged not to accept PAC money — so abortion rights groups like the Planned Parenthood Action Fund can’t donate to his campaign directly.

But Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes, said in a statement that the group will “lead grassroots efforts” across the state to mobilize voters.

“The Supreme Court vacancy poses a real and immediate threat to women in Texas, a state where access to safe, legal abortion is already on the line. It is critical that Texans – especially Texas women –make their voices heard in November by electing leaders who are committed to protecting women’s health and rights,” Gutierrez wrote.

Abby Livingston contributed to this report.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

Author: CLAIRE PARKER – The Texas Tribune

WASHINGTON – U.S. Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, setting off what could be one of the most contentious judicial confirmation battles in American history.

Kennedy is known as the swing vote on the high court, meaning that a conservative replacement could shift the body to the right for a generation. That could have huge implications for cases expected to make their way to the Supreme Court in coming years, including battles over the rights of businesses to make “religious refusals,” a reckoning over the issue of partisan gerrymandering and new restrictions on the right to abortion — all issues that would reverberate loudly in Texas.

The retirement is also a likely advantage for Texas in several lawsuits against the federal government currently winding their way through the federal courts system, including a case that aims to end the Deferred Action for Childhood Arrivals program and another challenge to the Affordable Care Act.

Both Texas senators, Republicans John Cornyn and Ted Cruz, serve on the Senate Judiciary Committee and are all but certain to play central roles in the questioning of whoever President Donald Trump nominates to replace Kennedy.

In a Fox News interview Wednesday, Cruz praised the moment as “an historic day.”

“What the Gorsuch pick did at the very best was maintain the status quo,” Cruz said. “The Justice Kennedy vacancy, on the other hand, is an opportunity to really have a profound impact on the court that could last for decades.”

Democrats, who are still bitter that U.S. Senate Majority Leader Mitch McConnell refused to allow a vote for the previous open seat during the Obama administration, should be expected to fight this nomination tooth and nail.

But they have little recourse. McConnell and his Republican colleagues lifted the filibuster rule during the 2017 nomination of current Justice Neil Gorsuch, meaning a simple majority is all that the GOP will need to push through the president’s nominee.

President Donald Trump said Wednesday that he’d choose his next nominee from a previously circulated shortlist of Supreme Court contenders. Cruz gave an early endorsement to one of his colleagues, who appears on that list: U.S. Sen. Mike Lee, R-Utah.

“The single best choice President Donald Trump could make to fill this vacancy is Senator Mike Lee,” Cruz said. “I think he would be extraordinary.”

Cornyn chimed in later in the day with a news release.

“I hope the President will choose a principled, well-qualified nominee committed to upholding the rule of law and interpreting the Constitution faithfully, rather than rewriting it,” he said. “I also hope Democrats will consider whomever the President chooses on the merits and not subject the nominee to unfair, personal attacks.”

“I look forward to voting to confirm Justice Kennedy’s successor this Fall.”

Trump’s shortlist also includes one Texan, former Texas Supreme Court Justice Don Willett, who was confirmed in December to a seat on the conservative 5th U.S. Circuit Court of Appeals.

Willett is perhaps best known for his outspoken Twitter presence, an accountthat has quieted slightly since his nomination last summer to the federal bench. Questions about Willett’s social media accounts dominated his confirmation hearing in November, with some senators suggesting that posts Willett considered lighthearted had in fact shown bias on issues like the rights of transgender students.

He told the committee that his tweets from the federal bench would “be above the fray” and focus largely on civic education.

Over the last 30 years, Kennedy emerged as a critical centrist on an increasingly polarized court, making him an important vote on several Texas cases. He wrote for the majority in the 2003 Lawrence v. Texas decision, a sweeping ruling that struck down Texas’ ban on gay sodomy and took 13 similar laws along with it. Two years ago, Kennedy sided with the court’s more liberal justices to strike down Texas abortion restrictions and uphold affirmative action policies at the University of Texas at Austin.

During the term that ended Wednesday, Kennedy sided with Texas in a case upholding the state’s political maps, which a district court had said intentionally discriminated against voters of color.

The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

By  ABBY LIVINGSTON AND EMMA PLATOFF – The Texas Tribune

Governor Abbott Statement On Supreme Court’s HB 2 Ruling

Governor Greg Abbott today issued the following statement on the Supreme Court’s ruling on HB 2:

“The decision erodes States’ law making authority to safeguard the health and safety of women and subjects more innocent life to being lost. Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”

**

Bishop Seitz Statement on the U.S. Supreme Court Decision Striking Down HB 2

I am extremely disappointed to hear that the U.S. Supreme Court has acted to overturn the will of the people of Texas to provide common sense protections to women who are seeking the serious medical procedure of an abortion.  An abortion results in the death and dismemberment of an unborn child but it also can have serious risks for the mother.  A 2009 Finnish study reported that 20% of abortions had potentially serious complications.

Unregulated facilities such as the one in Philadelphia under the direction of the murderous abortionist, Kermit Gosnell, led to abuses that only a few years ago shocked the nation with his butchery of women for profit.  Without oversight, what is to prevent this situation from taking place here in Texas?

It is sad to see that the drive for the license to kill the unborn has now led us in this country to turn our heads the other way, failing to even sensibly regulate this deadly commerce which often harms the mother and always results in the death of her child.

We continue to pray and work toward a culture of respect and legal protection for every human life, from the moment of conception to natural death, where every mother facing an unexpected pregnancy will know she has the love and support she needs to choose life for her unborn child.

**

State Sen. Rodríguez released the following statement regarding the Supreme Court’s 5-3 ruling on Whole Woman’s Health v. Hellerstedt:

The Supreme Court’s landmark decision reaffirms a woman’s constitutional right to access safe and legal abortion no matter where she lives. This decision adds to long-established precedent that the U.S. Constitution protects a woman’s right to make her own decisions for her health, family, and future, without unwarranted, burdensome government interference.

Today’s decision will allow Texas’ remaining clinics to keep their doors open, and for other clinics to open or reopen, improving much-needed access to care for women across the state. My constituents in El Paso and far west Texas will no longer have to travel hundreds of miles to access safe and legal abortion care.

Make no mistake – this is a victory for our Texas families and women’s rights. From its inception, H.B. 2 has been a thinly veiled attempt to restrict access to safe and legal abortion, offered under the condescending pretext “of protecting women.” It is the culmination of a decade-long mission to dismantle access to women’s health services – whether that’s abortion or contraception.

Our state laws force doctors to give Texans grossly medically inaccurate information, and require women to undergo unnecessary ultrasounds, face mandatory delays, and make extra, medically unnecessary visits to the clinic. For a state that prides itself as having less government interference, its leaders have embraced government intrusion into the private lives of women, depriving them of their autonomy.

Undoubtedly, with this defeat, we will face renewed attacks on women during the next legislative session. I continue to stand with Texas families and their health care providers, and pledge to continue to fight unnecessary laws that endanger women’s health and rob women of their respect and dignity.

**

Cornyn Statement on Supreme Court Ruling in Texas HB 2 Case

U.S. Senator John Cornyn (R-TX) issued the following statement in response to the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt:

“Today’s ruling sets a dangerous precedent for states like Texas, which the Constitution makes clear should be free to pass laws that are in the best interests of our citizens. Commonsense requirements that abortion clinics be held to the same standards as other medical facilities put the health of the patient first, and today’s decision is a step back in protecting the well-being of mothers across our state.”

Earlier this year, Sen. Cornyn led a broad Congressional coalition in filing an amicus brief with the U.S. Supreme Court in support of Texas HB 2. In total, 34 Senators and 140 Members of the House Representatives signed onto the brief, which can be found here.

The U.S. Supreme Court on Monday handed Texas abortion providers a major victory by overturning Texas’ 2013 abortion restrictions.

On a 5-3 vote, the high court overturned restrictions passed as part of House Bill 2 in 2013 that required all Texas facilities that perform abortions to meet hospital-like standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other infrastructure.

The court also struck down a separate provision, which had already gone into effect, that requires doctors to have admitting privileges at a hospital within 30 miles of an abortion clinic.

This means Texas’ 19 remaining clinics — of the more than 40 that were open before HB 2 passed — will continue to provide abortions. Had the court upheld the hospital-like standard requirement, Texas would have been left Texas with as few as 10 abortion clinics — all in major metropolitan areas.

In a majority opinion authored by Justice Stephen Breyer, the court indicated that the facility requirement on abortion clinics does not “benefit patients and is not necessary.” In knocking down the admitting privileges requirement, the court said “sufficient evidence” existed to prove that requirement “led to the closure of half of Texas’ clinics, or thereabouts.”

“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health,” Breyer wrote.

Texas Attorney General Ken Paxton in a statement called the ruling “disappointing” and insisted the decision was passed “to improve patient safety and raise the standard of care for women at abortion facilities.”

“HB 2 was an effort to improve minimum safety standards and ensure capable care for Texas women,” Paxton said. “It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly-elected representatives.”

Texas abortion providers and representatives with the Center for Reproductive Rights, which brought the lawsuit on their behalf, hailed the decision as a vindication.

“Every day Whole Woman’s Health treats our patients with compassion, respect and dignity—and today the Supreme Court did the same,” said Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health and the lead plaintiff in the case. “We’re thrilled that today justice was served and our clinics stay open.”

The high court’s decision was a massive win for the reproductive rights community in and out of Texas. The court’s decision is expected to help overturn similar requirements in other states fighting similar legal challenges.

• REFERENCE MATERIAL

Author:  Alexa Ura – The Texas Tribune

AUSTIN, Texas – The U.S. Supreme Court’s ruling on Thursday that the University of Texas can consider race as part of its admissions criteria in order to diversify its student body was a bitter defeat for Texas conservatives, who maintain the policy discriminates against white applicants.

But the ruling was an unexpected surprise for minority groups and advocates of affirmative action.

Philip Martin, deputy director of Progress Texas, says after an eight-year journey through the courts, it’s good to have the issue settled.

“What the Supreme Court said was that UT’s policies are working, and that they are good,” he states. “No policy is perfect forever, but right now, the process by which the University of Texas admits students and the affirmative action programs in place are legal and allowable under the law.”

The ruling was 4-to-3 with Justice Elena Kagan recusing herself because she had worked on the issue as solicitor general.

In the end, the justices ruled that a person’s race can be one factor among many in helping colleges and universities achieve student body diversity.

Abigail Fisher, a white applicant who maintained that UT had discriminated against her in its admissions policy, filed the suit in 2008.

She said the university violated her constitutional right to equal protection by using race as one of its deciding factors.

Martin says he hopes the ruling encourages other schools to diversify their student bodies.

“We wish there would’ve been a ninth justice on the court, so there could’ve been a nine-member vote,” he states. “That said, this decision does set precedent for the country, and we hope that universities – not just here in Texas, but across the entire United States – continue to look at using affirmative action in admissions policies. ”

President Barack Obama praised the decision, saying it doesn’t guarantee equal outcomes but promotes equal opportunities.

Several states, including Arizona, California, Florida and Michigan, currently forbid the use of race in their university admissions processes.

Author: Mark Richardson, Public News Service

Despite pledges from Senate Republicans to deny a hearing or vote to any nominee this year, President Barack Obama nominated D.C. Circuit Chief Judge Merrick Garland to the U.S. Supreme Court Wednesday morning.

Garland is “widely recognized not only as one of America’s sharpest legal minds, but as someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence,” Obama said. “He deserves our thanks and he deserves a fair hearing.”

Garland was nominated to fill the seat left vacant after the death of Antonin Scalia, who died on a trip to West Texas earlier this year.

Garland, 63, graduated from Harvard Law School and has served on the D.C. circuit since 1997. He has a reputation as a moderate judge, according to Sanford Levinson, a constitutional law expert at the University of Texas at Austin.

“He is solidly centrist and in context, quite bland,” Levinson told the Tribune. “He is the least in-your-face nominee imaginable. He is 63 years old.”

Because D.C. circuit cases tend to focus on administrative law, Garland does not have a lengthy judicial history of dealing with many of the hot-topic issues currently before the court. He has not issued noteworthy rulings on cases involving affirmative action, abortion regulations or immigration, three hot-button issues the justices are addressing this termthat stem from Texas cases.

Garland does, however, have a history with cases involving the Environmental Protection Agency, the agency Texas has sued 24 times since Obama took office.

In February, days before his death, Scalia — along with four other Republican-nominated justices — granted a request from Texas and more than two dozen other states to block the implementation of Obama’s ambitious Clean Power Plan while a legal challenge against the plan’s efforts to combat climate change play out.

In contrast, Garland has a record of generally supporting contested EPA regulations. In 2003, he wrote an opinion upholding the federal government’s application of the Endangered Species Act, which opponents challenged on the ground that the act exceeded the bounds of the commerce clause. In several other cases, he voted to uphold EPA regulations on emissions.

Earlier this month, the Supreme Court denied a request from Texas and 19 other states to block a federal rule limiting emissions of mercury, acid gases and other toxic metals.

U.S. Sen. Ted Cruz was quick to condemn the nomination, alluding to Garland’s history with environmental cases as well as speculating on how he might rule on several other issues.

“Make no mistake, if Garland were confirmed, he would side predictably with President Obama on critical issues such as undermining the Second Amendment, legalizing partial-birth abortion, and propping up overreaching bureaucratic agencies like the EPA and the IRS,” Cruz said in a statement.

Whether Garland will receive a hearing in front of the Senate Judiciary Committee remains an open question.

Last month, Republicans on the committee, including Cruz and U.S. Sen. John Cornyn, published a letter pledging to deny hearings to any Obama nominee. Cornyn went further, saying any nominee to the highest court in the land would likely be treated like a “piñata.”

“I don’t see the point of going through the motions if we know what the outcome is going to be,” Cornyn told The New York Times.

But some members of the committee are on the record in support of Garland. Sen. Orrin Hatch, R-Utah, who is the longest serving member of the Judiciary Committee, has a long history of praising Garland. As recently as last week, Hatch praised him as a fine man who the president “could easily name.” When Garland was voted onto the D.C. circuit in 1997, Hatch was even more forthcoming in his praise, as Obama noted on Wednesday.

Obama alluded to the moderate nature of his nominee Wednesday, noting that he had consulted both Democrats and Republicans during his search process.

“It’s a decision that requires me to set aside short-term expediency and narrow politics so as to maintain faith with our founders, and perhaps more importantly, with future generations,” Obama said.

The moderate selection indicates Obama does believe he can get his nominee confirmed, Levinson told the Tribune.

“He’s clearly going for a confirmation,” Levinson said. “This is not a sacrificial lamb.”

Garland emphasized his commitment to upholding the law in his remarks accepting the nomination.

“People must be confident that a judge’s decisions are determined by the law and only the law,” Garland said. “For a judge to be worthy of such trust, he or she must be faithful to the Constitution and to the statutes passed by Congress.”

“Fidelity to the Constitution and the law has been the cornerstone of my professional life,” he added.

Following Obama’s announcement Wednesday morning, both Cornyn and Texas Gov. Greg Abbott quickly released statements denouncing Obama’s decision to put forward a nominee at all. Neither spoke to Garland’s qualifications specifically.

“The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy,” Cornyn said.

“Because this is one of the pivotal issues in the current presidential election, Americans should have the opportunity to vote for a president who will fill this vacancy,” Abbott added.

If confirmed, Garland would be the fourth Jewish member on the current court, joining Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Like all current members of the court, he has an Ivy League law degree. Three of the eight current Justices previously served on the D.C. circuit court, as did Scalia.

Jim Malewitz contributed to this report.

Disclosure: The University of Texas at Austin is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Author: Jordan Rudner – The Texas Tribune

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues

WASHINGTON — During oral arguments Wednesday in a case challenging the constitutionality of Texas’ abortion restrictions, U.S. Supreme Court justices found little on which to agree as they dissected the state law that could leave Texas with as few as 10 clinics.

Conservative justices questioned the role restrictions passed as House Bill 2 in 2013 played in closing dozens of clinics, asking if abortion providers could prove that two provisions in the law can be blamed for leaving the state with fewer clinics. They also demanded evidence bolstering claims that remaining clinics do not have the capacity to serve Texas women attempting to obtain the procedure.

Meanwhile, liberal justices pressed the state to prove that the medical justifications cited for passing the abortion restrictions were necessary. They questioned why Texas would push for abortions to be performed in ambulatory surgical centers but not other outpatient procedures, such as colonoscopies and liposuction, which come with higher risks for complications.

The contested provisions are part of HB 2. One requires abortion clinics to meet the same standards as hospital-like ambulatory surgical centers, which range from minimum sizes for rooms and doorways to the number of nurses required to be on duty.

A separate provision requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Only 19 Texas clinics remain of the more than 40 that were open before HB 2 passed, and the restrictions have been blamed for the closures. The court’s decision in Whole Woman’s Health v. Hellerstedt, expected sometime this summer, could leave the state with as few as 10 clinics.

Stephanie Toti of the Center for Reproductive Rights, which is representing the abortion providers, pointed out that 11 clinics closed the day the admitting privileges requirement went into effect, bringing the number of clinics down to about 20. Eight clinics closed in anticipation of the law going into effect, she said

But conservative justices appeared skeptical as to whether abortion providers had provided enough evidence to blame the restrictions for those closures. Justice Samuel Alito was the most critical, questioning whether the clinics had closed due to other factors.

“What’s the difference…was that their burden?” Alito said.

Justice Elena Kagan responded by pointing out that Texas was left with only a handful of clinics during a two-week period when the ambulatory surgical requirements went into effect last year.

Those clinics reopened when the Supreme Court intervened in the case. “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” Kagan said.

The case under review was filed in 2014 by a coalition of Texas abortion providers who argue the restrictions create substantial obstacles for Texas women seeking abortions — an “undue burden” that renders the rules unconstitutional — and do not advance the state’s interest in promoting health.

Attorneys for the state contend the regulations are intended to ensure women’s safety, and there isn’t sufficient evidence that they create an undue burden for the majority of Texas women seeking abortions.

Texas Solicitor General Scott Keller argued that only 25 percent of Texas women of reproductive age would live more than 100 miles from the closest abortion clinics under HB 2, not counting women in El Paso and McAllen.

Those women were not included in the state’s estimate because a McAllen clinic is currently exempt from the requirements, and women in El Paso can travel a few miles to New Mexico to obtain the procedure.

Justice Ruth Bader Ginsburg challenged that argument. In determining whether an abortion restriction is constitutional, “our focus must be on the ones who are burdened,” Ginsburg said.

She cited a spousal notification requirement struck down in Planned Parenthood v. Casey, the 1992 U.S. Supreme Court case that reaffirmed a woman’s right to an abortion but gave states more power to restrict the procedure to “further the health or safety of a woman.”

In that case, the court struck down a requirement that married women notify their husbands before obtaining an abortion.

“You only look to the women for whom this is a problem,” Ginsburg added.

Ginsburg also questioned why Texas would cite the availability of New Mexico clinics as part of its argument when that state does not require abortion clinics to meet similar ambulatory surgical and admitting privileges requirements.

“If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women Texas?” Ginsburg asked.

The lower courts have split on the constitutionality of the provisions. In 2014, U.S. District Judge Lee Yeakel of Austin struck down both provisions. The state immediately appealed to the U.S. 5th Circuit of Appeals, which in June upheld most of its provisions.

The appellate court did carve out an exception from most of the hospital-like standards for the relatively remote Whole Woman’s Health clinic in McAllen, and granted one of the McAllen clinic’s doctors relief from the admitting privileges requirement.

In that ruling, the 5th Circuit also diverged from opinion of other circuits by rejecting the notion that legal precedent requires courts to scrutinize the facts state legislatures use to justify health-related abortion restrictions.

On Wednesday, Alito, was among the most vocal in agreeing with that argument, questioning whether courts are “qualified” to determine the validity of states’ medical justifications.

The liberal justices struck a different tone, questioning how much the court should defer to state legislatures and how far states must go to provide evidence that restrictions improve health.

They also pressed Keller to lay out not only the medical benefits tied to the ambulatory surgical and admitting privileges requirements, but how they improved health standards.

Keller argued the restrictions are meant to make the procedure safer and respond to possible complications, which he says are underreported among abortion providers.

Justice Sonia Sotomayor responded that those complications would be reported by the hospitals that treat women. With thousands of women left more than 100 miles from the nearest abortion clinic, that may not always be the same hospital the doctor who provided the abortion is affiliated with, she added.

“There has to be some tie between the benefit and the burden, doesn’t there?” Sotomayor asked.

The Texas abortion case could have national implications. As of last November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities, but those restrictions were blocked in two of those states.

Justice Anthony Kennedy, considered the swing vote in the case, remained mostly silent during arguments despite his role in setting the undue burden standard in the 1992 case.

He offered little indication on his views of the law, but at one point questioned whether the case should be sent back to a lower court to collect more evidence on the law’s impact, including whether remaining clinics had the capacity to continue offering the procedure at the same rate if the state is left with fewer clinics.

Among his few interjections was pressing Keller on figures that showed that the share of medical abortions — a method used early in a pregnancy — is on the rise nationwide but down in Texas while the number of surgical abortions are increasing in the state.

 “This may not be medically wise,” he said after his colleagues questioned why Texas would require women to obtain abortion-inducing medication in an ambulatory surgical center.

Following the recent death of Justice Antonin Scalia, the high court was left with a vacant seat. That means if Kennedy sides with the court’s conservatives, the resulting 4-4 tie would uphold the 5th Circuit’s ruling, which largely upheld the abortion restrictions, but the decision would not set national precedent.

The Texas case is the most prominent abortion case the court has considered in decades, and could redefine the next era of abortion restrictions in the United States.

In Austin, less than an hour after oral arguments ended, abortion rights activists from local law firms and the American Civil Liberties Union expressed optimism about the outcome of the case, and frustration the case needed to be heard in the first place.

“As I stand here today — I never thought we would be here,” said Barbara Hines, an attorney who has been an abortion rights activist since the early 1970’s, when abortion was a felony in Texas. “In 2016, we are still fighting over a woman’s right to control her own body and make her own decisions.”

Sarah Wheat, vice president for community affairs at Planned Parenthood of Greater Texas, spoke directly to the liberal justices’ questions about the medical necessity of HB 2’s costly clinic requirements.

“The width and breadth of our janitor’s closet is dictated — how often the air ventilates through our ventilation system, the width of our hallways. The type of door hinges we have. None of these enhance the safety and health of our patients,” Wheat said.

Jordan Rudner contributed to this report.

Disclosure: Planned Parenthood was a corporate sponsor of The Texas Tribune in 2011. A complete list of Tribune donors and sponsors can be viewed here.

Author: Alexa Ura – The Texas Tribune

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues

For Republican Texas officeholders regularly straining against the leash of a strong federal government, Antonin Scalia has been a reliable and predictable conservative friend on the nation’s highest court.

They counted on him over and over in winning and losing cases that involved redistricting, environmental regulation, same-sex marriage, college admissions — even the elevation of a Texas governor to the White House.

He might have been at their side in four Texas cases now pending before the court on legal questions about undocumented immigrants, the longstanding one-person-one-vote principle in election law, a challenge to the state’s regulation of abortion facilities and, once again, on the consideration of race in college admissions.

But his death this weekend on a West Texas ranch silenced the high court’s conservative intellectual anchor and its most acerbic writer and shifts an often-divided court to the left. Speculation about whether the current Senate will consider a replacement appointed by President Obama began immediately upon word of Scalia’s death; whatever happens there, it’s unlikely another judge would be in place before the end of the court’s current term.

Scalia wasn’t always on Texas’ side in cases before the high court, but he was with the state’s conservatives more often than not.

He was on the losing side of a 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project in 2015, which said discrimination in housing cases could be proved with statistics showing “disparate impact” as opposed to intentional bias.

And he was on the losing side in Walker v. Texas Division, Sons of Confederate Veterans,when the court said the state was free to reject license plates featuring the Confederate flag.

Scalia was with the 6-2 majority in 2014’s Schuette v. BAMN that upheld Michigan voters’ right to ban taking race into account in college admissions. That decision was the subject of much study in relation to another admissions case — Fisher v. the University of Texas at Austin — heard earlier in the court’s current term.

And he was one of the five justices whose ruling made Gov. George W. Bush of Texas the 43rd U.S. president.

Scalia could have been an outsized voice in four cases before the court in the current term — two of which haven’t even been argued yet.

Texas abortion law

On March 2, the court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, which challenges Texas’ 2013 abortion law. Beyond deciding the constitutionality of a law that could shut down about half of the state’s 19 remaining abortion clinics, the Texas abortion case gives the Supreme Court an opportunity to clarify how far states can go in restricting abortion.

In 1992, the court ruled that states can impose abortion restrictions as long as they do not place an undue burden on a woman’s ability to obtain an abortion.

Lower courts across the country have disagreed, however, on what constitutes an “undue burden.” Activists on all sides are hoping the high court will provide a clearer definition in its decision in the Texas case. That case centers on the state’s requirement that abortion clinics meet hospital-like ambulatory surgical center standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. In June, a three-judge panel of the U.S. 5th Circuit Court of Appeals largely upheld the new abortion restrictions, saying the new law does not impose an undue burden on a majority of Texas women seeking abortions.

Justice Anthony Kennedy could be the swing vote. If he sides with the conservatives on the court, the resulting 4-4 tie would affirm the lower court ruling.

The lower court also granted the relatively remote Whole Woman’s Health in McAllen an exemption to some narrow elements of the ambulatory surgical center requirements and from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Barring a tied vote, a decision in the Texas case could also determine the constitutionality of restrictions in place in other areas of the country. As of November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those states, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities. Those restrictions were not in effect in two of those states.

Immigration

The high court also agreed to hear the state’s case against the Obama administration’s controversial executive action on immigration that was announced in November 2014.

Known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, the action would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for three-year work permits. Lower courts have ruled to halt the policy three separate times.

The Supreme Court agreed to hear the case in January but has yet to schedule arguments.

Gov. Greg Abbott, in his former role as Texas attorney general, filed suit to stop DAPA and argued the president was abusing his executive authority. U.S. District Court Judge Andrew Hanen of Brownsville ruled the Obama administration failed to comply with the federal government’s Administrative Procedure Act, which governs how federal regulations are made. A Nov. 9 decision by the U.S. 5th Circuit Court of Appeals upheld that decision, and the executive action remains unenforced as the appeal rises to the Supreme Court.

During an interview with The Texas Tribune this month, Solicitor General Scott Keller said the case wasn’t about immigration, but instead about the separation of powers.

“I think the justices take seriously every single case that goes before them,” he said. “And when they see this case, they are going to see an executive that is pushing through a sweeping theory of executive power. And the court takes the separation of powers very seriously, and forcing the separation of power is something the court has done for decades.”

UT-Austin’s affirmative action policy

The death of Scalia cast uncertainty on many important cases before the Supreme Court, but probably won’t have a major impact on the decision in Fisher v. the University of Texas at Austin, which is a case about the constitutionality of affirmative action.

Justice Anthony Kennedy is still the likely swing vote, just as he was before Scalia died.

Abigail Fisher, who is white, contends she was unconstitutionally denied admission into UT-Austin in 2008 because of her race. UT-Austin considers the race of a small portion of its applicants, and black and Hispanic students often get a slight advantage in that pool of admissions. If Fisher wins her case, UT-Austin might be unable to consider the race of its applicants in the future. A broad ruling against UT-Austin could even end affirmative action nationwide.

Scalia, a longtime opponent of affirmative action, was almost certain to vote against UT-Austin. He was in the dissent in Grutter v. Bollinger in 2003, when the Supreme Court upheld the practice of affirmative action in a limited way.

During oral arguments in the Fisher case in December, he repeatedly cast doubts on whether racial preferences were constitutional or whether they did anyone any good.

He cited an argument that sending black and Hispanic students to schools that they aren’t necessarily qualified for doesn’t do them any good. He said most of the black scientists in America “do not come from the most advanced schools.”

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower track school where they do well,” he said.

Scalia was one of four conservative justices who most people predicted would vote against UT-Austin, unless some kind of broad compromise was reached. Meanwhile, three liberals on the court — Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer — have indicated support for affirmative action. (The court’s fourth liberal, Elena Kagan, recused herself because she worked on the case while she was U.S. solicitor general.)

If Kennedy joins the conservatives or liberals in a ruling that breaks down along ideological lines, the vote will now be 4-3 either way. With Scalia on the court, it would have been 5-3 in favor of the conservatives or a 4-4 tie, the latter of which would have kept standing the the lower court’s ruling in favor of UT-Austin.

The case could also end in some kind of unexpected compromise that doesn’t break down along ideological lines, just like it did when the Supreme Court heard it the first time in 2013. That year, the court voted 7-1 to essentially avoid a major decision, instead remanding the case to a lower court.

“One of the reasons I am convinced the court did take the case is that the conservatives figured out they couldn’t lose — they had four sure votes and were willing to roll the dice with Kennedy,” said Sanford Levinson, a constitutional law expert at the University of Texas at Austin.

“Now they have three sure votes, and the liberals have three sure votes — so it goes to Kennedy. They might decide just to dump the case, to say it was unwise to [take up the case] in the first place, because it seems to me not unlikely that you could end up with a 3-3-1 decision.’

Redistricting

Finally, the justices heard arguments last year on a Texas case that questions a basic idea in American election law. In Evenwel v. Abbott, the plaintiffs argue that their voting power is diluted by the way Texas draws its state legislative districts, saying those lines should be based on the number of eligible voters in each district and not on population.

Congressional districts are based on population, as directed in the Constitution. The Evenwel case challenges Texas Senate district lines; a decision allowing states to use eligible voters as a base could shatter current lines here and in other states that want to make the change, remaking the distribution of power in state legislatures. That decision is pending.

The court has already accepted those four cases, among others, but doesn’t have to do anything this term if the justices decide to change course.

If the justices don’t want to rule on a case they’ve already accepted, they can announce it was “improvidently granted,” which means lower court ruling holds, Levinson said. They can hold over any unheard cases they want until they have a ninth colleague, and they can rehear oral arguments with a ninth colleague if they want to wait or they think a ruling with a four-person majority would be too controversial.

“It certainly wouldn’t surprise me if they hold over some stuff where time really isn’t of the essence,” Levinson said. “You can make this argument of the election case [Evenwel]. If they hold it over, the world won’t come to an end.”

Disclosure: The University of Texas at Austin is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Authors: Ross Ramsey, Julián Aguilar, Jordan Rudner, Matthew Watkins and Alexa Ura – The Texas Tribune

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues

As he prepares to make his fifth trip to argue before the U.S. Supreme Court in perhaps his most high-profile case to date, Texas Solicitor General Scott Keller is confident he and his team will prevail and stop President Obama’s immigration plan from taking effect.

The nation’s high court will likely take upTexas v. United States in April. The arguments will focus on Obama’s controversial executive order, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, which would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for a three-year work permit. Lower courts have already ruled to halt the policy three separate times.

Keller and Chip Roy, the first assistant attorney general, sat down with The Texas Tribune recently to explain why the case isn’t as simple as some think, what the state is actually fighting for and why, contrary to what some immigrant rights groups say, what Obama did isn’t that same as actions taken by his predecessors.

The attorneys also discussed how the office operates while their boss, Texas Attorney General Ken Paxton, faces criminal charges in state district court.

The following is an edited and condensed transcript of the interview.

Keller: The fact that the president has taken some executive action on immigration, that’s not why the lawsuit was filed.  The same day that the memo that we’re challenging was filed, there were nine other immigration executive memos. We’re not challenging any of those nine. The memo that we’re challenging goes far beyond deportation. What it does is it grants lawful presence to millions that are here, who are here, unlawfully. And what that means is that there is going to be benefits and eligibility for benefits that come with that, such as Medicare, Social Security, the earned income tax credits, unemployment insurance, driver’s licenses. In addition to that, work permits.  So it’s that affirmative act of granting lawful presence status and eligibility for benefits that violates the law and that’s why it’s unlawful.

TT: So this (lawsuit) is in opposition to the benefits and not against the prosecutorial discretion aspect of choosing which immigration cases not to pursue?

Keller: Our lawsuit doesn’t impact the executive’s ability to exercise prosecutorial discretion. Our injunction doesn’t require the executive to remove anyone, it doesn’t require it not to remove anyone, and it doesn’t interfere with removal priorities. What it’s about is the affirmative granting of lawful presence and lawful eligibility.

TT: Brownsville-based District Court Judge Andrew Hanen first ruled in February that the president violated the federal Administrative Procedure Act when he announced DAPA. That seems like a technicality about a posting requirement. Is it?

Keller: What he did say is the administration needed to go through notice and comment procedures. But I wouldn’t characterize this as a technicality. This is a key feature of what Congress has said. If we’re going to have administrative agencies and we are going to give them and delegate to them power, this is the key mechanism through which there is Democratic participation when administrative agencies take action. So this is not simply a “They didn’t put a piece of paper up on a courthouse door.” They would have received thousands of comments, some of them may very well have caused them to change the actions they were taking, especially given everything that’s come out in this lawsuit.

Now the Fifth Circuit Court said not only was this a procedural violation but it was also substantively unlawful and we’re continuing to press those arguments at the Supreme Court.

TT: When he filed the lawsuit, Gov. Greg Abbott also said, “Look, we have proof this is going to harm Texas based on the unaccompanied immigrant minors that came to Texas in 2014.” Can you walk me through that analogy?

Keller: We have four different arguments for standing (in that Texas has proven that it is a party that’s being directly harmed by Obama’s action). The basis on which both the district court and the Fifth Circuit have said we absolutely have standing on are costs to our driver’s license program. This memo would mean hundreds of thousands of additional unauthorized aliens would become eligible for driver’s licenses and that would impose significant costs on the state of Texas. Another aspect for which we have standing on are costs from education and health care and law enforcement that are caused by additional unauthorized aliens being in the country

And the federal government’s conceded that a policy by which you are going to grant lawful presence and all these benefits will mean there are going to be additional unauthorized aliens in the country and in the state that otherwise wouldn’t stay in the state. So what that means is the state of Texas is going to be spending tens of millions of dollars.

TT: Isn’t the education issue already settled? Isn’t it long-standing policy that if you’re here and you show up to a public school, you have to be given an education?

Keller: Precisely. What that means though is the federal government, as the Supreme Court has interpreted the Constitution, says that states have to spend that money. What this memoranda is doing is it is giving lawful presence and benefits which means – it is not only likely –  but it will cause additional unauthorized aliens to remain in the country and therefore to avail themselves of those services that we are required to perform.

TT: If the (Obama administration’s) … directives to focus on what the government calls the “worst of the worst” have been in place since 2008, why are you all making the assumption that these people that are now going to cost the state money would have left had in not been for this (executive action)?

Keller: Well the district court made that fact finding, so it’s not even just an “assumption.” But second of all, even the federal government has said that this policy obviously has wide impact on the states and the states are going to bear many of the costs of this program. In 2012, the U.S. Supreme Court, in a case called Arizona v. The United States, explicitly recognized that the states have a vast interest in immigration policy and that the states are going to bear the brunt of immigration policy.

TT: What can states do as far as state-based immigration?

Keller: Well in a case called Chamber of Commerce V. Whiting, which was based on employers, states can obviously regulate employers to a degree. There are going to be issues about when federal law preempts state law in an immigration context and we completely acknowledge that. But when we’re talking about the president’s memorandum to grant 4 million unauthorized aliens lawful presence and ineligibility to benefits the issue here is not about preemption, it’s about the separation of powers. When you say “The federal government has wide authority on immigration,” – that’s right. But the Constitution gives that (authority) to Congress.

TT: Would this lawsuit have been filed if it didn’t affect so many people, more than 5 million? At least in the court of public opinion, do you think that had a lot to do with it?

Keller: Obviously the lawsuit was filed  under then-Attorney General Abbott, so I won’t speculate as to the motives. But to go back to your question that every president has done something like this, I don’t think that’s accurate. There is a difference between using discretion to not deport certain people and past presidents have certainly used that discretion. But that’s different than taking the additional steps and saying we’re not going to deport certain people but then we are going to declare them lawfully here and give them benefits.

Typically (as) a use of enforcement discretion, the government is going to say, “We are not going to process this through the system.” For instance, in Colorado where they are not going to process you for low-level marijuana crimes. No one thinks that what the government is doing is saying “You are actually in lawful possession of that low level of marijuana.” But yet here what this (immigration) memo is doing is saying you are lawfully present in the country even though Congress has said it’s unlawful.

Chip Roy: Keller and I both worked for Senator (Ted) Cruz, (a former Solicitor General) and lived through the immigration debates in 2013. Prior to that I was there with Sen. (John) Cornyn, (a former Texas Attorney General), in 2006 and 2007. I bring that up to say that it’s not like this issue has not been debated roundly and heavily. I think that’s relevant here because it goes to the point about what this president is doing. And in light of the fact that this has been debated and in light of the fact that there has been no conclusion reached, the president then unilaterally takes a position that would affect 4 to 5 million people with the stroke of a pen. I don’t know if there’s some magic number – 200,000 or a million or 4 million – but the nature of what the president is doing here matters a lot in the context of the extraordinary debate that we saw on Capitol Hill. Having lived through it, I can tell you that the amount of interaction we had with the American people, that matters and that goes to the heart of this issue. When the American people are engaged, they have real concerns about this policy.

TT: Why was the lawsuit filed in Brownsville? There have been a lot of people who have said that Abbott went shopping for a judge who has been on record about how frustrated he is about the illegal immigration situation. Was that a factor?

Roy: To echo what Scott said, we weren’t here in December. It was the previous administration that made that determination. But I’ll just mention that out of the thousands of cases we deal with, rarely when we’re dealing with lawsuits out in Travis County or filed throughout the state in venues that may or may not be favorable, we don’t often get a lot of venue questions about that. But specifically on this, it’s South Texas. It’s not like this was filed in a jurisdiction that has no connection to the issue at hand. This is in the heart of the area where you’re going to feel the real impact. And there was no guarantee they were going to get Hanen.

TT: Have any recent decisions by the U.S. Supreme Court, either on marriage equality or Obamacare or anything else, affected your strategy on immigration?

Keller: I think the justices take seriously every single case that goes before them. And when they see this case they are going to see an executive that is pushing through a sweeping theory of executive power. And the court takes the separation of powers very seriously and forcing the separation of power is something the court has done for decades.

Roy: I think we don’t get in the prediction business. I know these sound like talking points but it’s actually meaningful that we’ve won three times. The arguments are very strong. The thing we always have to clarify is that this is not an immigration question – this really is a separation of powers question: What does the president have the power to do?It’s actually breathtaking from our perspective the impact that this can have on the power of the executive going forward if it’s not properly checked.

And to be clear it’s certainly not a partisan issue. It does not matter who is in The White House. One of Scott’s predecessors, Sen. Ted Cruz, argued Medllín (v. Texas case). And that was directly against the Bush administration. There are times when it’s important to directly stand up for this core balance of power that’s so critical.

TT: If I may change gears a bit and ask about something else. Attorney General (Ken Paxton) is obviously going through some issues that have been made very public. How is the office functioning since the indictments were handed down? Do you guys communicate a lot with him? Is the issue not mentioned in the office?

Roy: This agency is over 4,000 people of committed public servants, most of whom have predated us and many of who will probably be here after us.  We have 700 and something lawyers, 29,000 cases, we collect $4 billion in child support. It is more than a full-time job for all of us.

We’re in constant communication with the attorney general and we’re focused on doing our job every day to defend the state of Texas. I know that that sounds like some playbook or a talking point. But it’s true.

TT: Have you shouldered more of a leadership role though? I know there are thousands of employees here but you two are probably a lot closer to the attorney general than 3,998.

Roy: The first assistant attorney general, the solicitor general, our head of civil litigation, all of us are charged to manage the daily affairs of this agency and that’s what we’re doing. I don’t know what to compare it to – I didn’t serve in a previous administration. What I know is that the attorney general hired us to do a job and that’s the job that we’re doing.

Author: Julián Aguilar – The Texas Tribune

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues