With Scalia’s Death, Fate Of Wisconsin Abortion Law Becomes Unclear

​Following the death of Supreme Court Justice Antonin Scalia, advocates on both sides of the abortion debate are counting votes.

Without Scalia, it’s not clear how the court will rule on a case that would affect a Wisconsin law requiring abortion doctors to have hospital admitting privileges. That law was struck down in November by the U.S. 7th Circuit Court of Appeals. However, the Supreme Court has agreed to consider an identical Texas law that was recently upheld by the 5th Circuit.

Wisconsin Attorney General Brad Schimel has filed a brief in the Texas case now urging the justices to uphold the law so that Wisconsin can enforce its requirement. Chelsea Shields of Wisconsin Right to Life said that without Scalia, that may not happen.

“We’ve lost one very reliable vote from somebody who believes in the right to life,” said Shields.

Indeed, Scalia has consistently upheld restrictions on abortion. But if his seat remains empty when the high court rules on the Texas case, the court could deadlock in a 4-4 tie. That would be a win for abortion rights supporters in Wisconsin because the ruling against the law would stand. In Texas, the law would go into effect.

Shields said there’s still a chance for a majority ruling supporting the law if Justice Anthony Kennedy, seen as the swing vote in the case, sides with abortion opponents as he did in a partial birth abortion case.

But Shields said while Kennedy was uncomfortable with allowing late-term abortion, he has sometimes ruled in favor of protecting abortion rights.

“There are other issues related to abortion where he’s erred more on the side of being permissive rather than protective of the unborn child,” she said.

Calls to Planned Parenthood for comment were not returned.

In both Texas and Wisconsin, abortion providers were forced to close after the passage of the admitting privileges laws because doctors at those facilities did not have the required access to local hospitals.