AUSTIN — While the recent death of Justice Antonin Scalia is fueling speculation over his eventual replacement on the court, an equally pressing issue is how his absence affects pending U.S. Supreme Court litigation. 

With only eight justices, the lack of Scalia’s conservative viewpoint — and vote — will likely affect the outcome of at least one, and possibly two, high-profile Texas cases, constitutional scholars say. 

Key cases involve abortion and affirmative action in college admissions.

“Justice Scalia was no big fan of Roe v. Wade,” the landmark 1973 case ruling abortion a fundamental right, said Brian Serr, a Baylor Law School professor. “He would be a little bit more disposed to say (restrictions) do not constitute an undue burden.”

The abortion case, Whole Woman’s Health v. the Commissioner of the Texas Department of Health, revolves around a 2013 Texas law requiring abortion clinics to offer facilities equal to a surgical center’s. 

It also mandates that abortion doctors have admitting privileges at nearby hospitals.

The issue is whether such restrictions, which forced abortion clinic shutdowns across Texas, should be overturned because they impose an unconstitutional “undue burden.”

A Supreme Court hearing is set for March.

Without Scalia, “It seems likely it will be a 4-4 split,” said H.W. Perry, a University of Texas School of Law professor. 

If that happens, a 5th Circuit Court of Appeals decision that basically upheld the state law would stand within the district, or at least in Texas, depending on how the court writes its opinion, David Guinn, a Baylor Law School professor, said. 

In either event, there would be no new national ruling, but only varying decisions, conservative and liberal, in the federal circuits. 

Serr is less certain, however, of a 4-4 split, given Justice Anthony M. Kennedy’s previous mixed record on abortion. 

He could vote to overturn, experts say.

“The chances that Texas’ regulations are struck down probably increased without Justice Scalia there,” Serr said. “Scalia’s death substantially decreases the chance that the Supreme Court will find Texas’ regulations constitutional.”

On affirmative action, another hot-button issue on which Scalia would likely have been a reliable conservative vote, his absence also raises questions.

At issue in Fisher v. University of Texas at Austin is whether UT can use race, among other things, as an admission factor.

“Without Scalia, are there enough votes to strike it down? Possibly,” Serr said.

A 4-4 decision is impossible because Justice Elena Kagan, a liberal vote, recused herself. 

Kennedy’s vote is again at play. 

If he votes with the remaining three-member liberal contingent, the UT admission plan stands. 

That’s unlikely, however, Perry said. 

“Oddsmakers would bet that the University of Texas is going to lose,” Perry said. “The most (votes) for UT is probably three. Justice Kennedy has not been a friend of affirmative action.”

And Scalia’s death adds yet another unanticipated possible outcome, Guinn said. The court may decide to have Fisher — and others — reargued. 

Even though they have heard oral arguments, justices can order cases reargued as long as a final verdict has not been announced, Guinn said.  

In some instances, Guinn said, the justices feel the outcome is too important to be decided by less than a full court. 

Guinn believes that a new justice — more liberal than Scalia, whom he called “the smartest conservative on the court” — will be confirmed, sooner or later.

“Now it’s going to be the liberal majority,” Guinn said. “Why wouldn’t those people want those cases reargued.” 

John Austin covers the Texas Statehouse for CNHI. Contact him at jaustin@cnhi.com.