There were a few indications that some of the justices might want to avoid making a sweeping ruling that would affect abortion access for women nationwide, possibly in light of having only eight justices to decide such an important issue. Another option would be to “remand” back to a lower court to reexamine the case, hear more evidence, or craft a different remedy (such as deciding that only some parts of the law could go into effect).
One point for which a remand might provide clarity is the question of how many abortions could Texas clinics provide—in other words, their capacity—if HB2 went into full effect. If the capacity of the remaining clinics would be very low, that would make it harder for women to get abortions and suggests that HB2 does create an undue burden. However, the capacity could change over time if clinics were able to get the resources to meet the new requirements and doctors were able to get admitting privileges. Capacity seemed particularly important to Justice Kennedy, whose vote might be critical to avoiding a 4-4 split. Though some evidence on the capacity of the remaining clinics is in the record, Justice Alito seemed to believe it was insufficient. You’ll hear Justice Alito refer to the “Louisiana case”; Louisiana’s abortion restrictions are also being challenged (and as it did last year with the Texas’s HB2, the Supreme Court recently blocked them from going into full effect). The Court could choose to hold off on making a major decision in Whole Woman’s Health and then take the Louisiana case next term, when it may have nine justices.