Supreme Court: Fate of health care cases uncertain after Scalia death

The fate of several high-profile health care cases remains uncertain after the death of U.S. Supreme Court Justice Antonin Scalia.

The eight remaining justices will hear oral arguments on and weigh in on a range of cases this term. Justice Scalia’s death however, means the possibility of a tie vote in some cases, which could lead to conflicting case law across states.

“Most Supreme Court decisions are not decided on a 5-to-4 split, so presumably regular business will continue as to most of the cases they are deciding,” said Timothy S. Jost, health law professor at Washington and Lee University in Lexington, Va. “However, for some of the most important cases in health care – like the abortion decision or the contraceptive decision – it was likely there was going to be a 5-to-4 split. Of those cases, the justices can either hold them over or vote, in which case there [could] be a 4-to-4 split.”

Antonin Scalia, Associate Justice of the Supreme Court, died Feb. 13.

If the court divides equally on a case, the lower court’s decision is affirmed. But the case would not have a Supreme Court precedent, meaning the lower ruling would apply only in the circuit court’s jurisdiction, said Eric J. Segall, a professor of law at Georgia State University, Atlanta.

In Whole Woman’s Health v. Cole, also known as Whole Woman’s Health v. Hellerstedt, for instance, a split would uphold an appellate decision that allowed abortion restrictions in Texas to go forward. In that case, the state is battling health providers over a mandate that abortion providers must have admitting privileges at a hospital within 30 miles and that abortion clinics must meet the same requirements as those of ambulatory surgical centers (ASCs). The 5th U.S. Circuit Court of Appeals ruled that the regulations do not impose an undue burden on a patient’s right to get an abortion.

“If a 5-4 [Supreme Court decision] upheld those restrictions, that would be national law for the whole country, and it would be a huge deal,” Mr. Segall said in an interview. “If it’s a 4-4 tie, than in Texas and two other states, the Texas decision would still be good law, but it would have no effect outside that circuit.”

In the case of Zubik v. Burwell however, a split vote would mean nationwide differences in how the Affordable Care Act’s contraceptive mandate is applied, said Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute. The Zubik case centers on whether the ACA contraceptive-coverage mandate and its “accommodation” violates the Religious Freedom Restoration Act by forcing religious nonprofits to act in violation of their beliefs. The 8th U.S. Circuit Court of Appeals struck down the exception twice, ruling that forcing organizations to offer contraceptive coverage – even indirectly – violates their religious rights. The 8th Circuit’s decisions are at odds with rulings by the 2nd and 5th Circuits.

Ilya Shapiro

Because of the conflicting lower court opinions, if the Zubik case were decided 4-4, “the regulation [would be] in place in parts of the country and not in others,” Mr. Shapiro said in an interview. “That seems untenable. Cases like that especially, the court would likely delay the arguments that are currently scheduled until the next term.”

Justices can decide whether to vote or rehear cases that were already heard with Justice Scalia in attendance, but are not yet decided. They can also dismiss or wait to address cases next term. Decisions that were made with Justice Scalia’s vote, but were not yet published, will be void, Mr. Shapiro said. As for Justice Scalia’s replacement, Mr. Shapiro noted that even if President Obama makes a nomination and it is confirmed by the Senate, it would be too late to consider cases this term.

Mr. Segall stressed that it’s too early to tell how Justice Scalia’s death will impact ongoing and future cases and the court as a whole.

“We don’t really have a precedent for this,” he said. “We’ve had vacancies before, but we’ve never had a vacancy in an election year where [the Court comprised] four conservative Republicans and four liberal Democrats. I think we should all step back. There are so many imponderables.”

Supreme Court analysts predict the eight justices will announce their decisions – or lack thereof – during the last week of June.

Justice Scalia was known as the high court’s most vocal conservative and was the longest-serving current justice on the court, hearing cases for 29 years.