Supreme Court: Texas abortion law may stay in effect

WASHINGTON—The Supreme Court on Tuesday ruled 5-4 that a Texas law regulating abortion may stay in effect pending a ruling by a federal appeals court early next year. 

At issue was a provision of House Bill 2, passed last summer, requiring abortion doctors to have admitting privileges at a hospital within a 30-miles radius of the procedure.

The law was to go into effect on Oct. 29, but U.S. District Judge Lee Yeakel ruled on Oct. 28 that the hospital privilege requirement placed an unconstitutional “substantial obstacle” before women seeking abortions. The state appealed to the 5th Circuit Court of Appeals in New Orleans, where a three-judge panel disagreed with the lower court, arguing the state would likely prevail on the constitutional merits of the case, thereby placing the law into effect.

The appellants in the case, Planned Parenthood of Greater Texas Surgical Health Services, et al., quickly turned to the Supreme Court, which took up the case last week.   

The full 5^th Circuit Court of Appeals is scheduled to hear oral arguments in the case in January. Tuesday’s ruling holds the law in place until then, but either side may appeal next year’s ruling to the Supreme Court, which appears likely. 

Writing the concurring opinion, Justice Antonin Scalia asserted that the dissenting parties failed to argue against the 5^th Circuit’s reasoning on the “most critical” factors of their decision—that the state would likely prevail on the merits, and that the state would suffer a type of “irreparable harm” by failing to have its laws enforced.  

But Justice Stephen Breyer, who wrote the dissenting opinion, argued that a disruption of “the status quo” as it relates to abortion in Texas warranted a vacating of the appellate court’s ruling because it would “substantially reduce access to safe abortions in Texas.” 

On the constitutionality of the hospital privileges requirement, Breyer wrote that it is “a difficult question. It is a question, I believe, that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit’s ultimate decision.” 

Scalia countered that reversing the 5^th Circuit’s ruling “would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional. Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards—which do not include a special ‘status quo’ standard for laws affecting abortion.” 

Abortion providers have said the law would force the closure of more than a dozen abortion clinics because its doctors could not attain hospital privileges. The state has argued a compelling state interest in protecting its citizens. 

“These are commonsense—and perfectly constitutional—regulations that further the state’s interest in protecting the health and safety of Texas women. And we are pleased that the U.S. Supreme Court has ruled that HB 2 will remain in effect,” Lauren Bean, spokeswoman for Attorney General Greg Abbott, said in a statement. 

Abbott is the likely GOP nominee in next year’s governor’s race. 

Abbott’s likely foe, Democrat state Sen. Wendy Davis, who gained notoriety for her 11-hour filibuster against HB 2, countered, “Clinics will close and women’s health will be hurt because of this law. This is an abuse of power by politicians in Austin. I trust women to make their own decisions and will continue to work to make sure that women and mothers are safe and have access to adequate health care.” 

Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, said of the decision: “In this case, the Supreme Court is right not to mess with Texas. The courts have slapped back even the most minimal regulation, much less restriction of abortion by the states. We have a long way to go to protect our unborn neighbors, and their mothers, from the predatory abortion industry. But the Court’s decision here is a good sign.”  

Many others commented on the ruling via press statements or on social media sites. 

Texas Gov. Rick Perry said: “This is good news both for the unborn and for the women of Texas, who are now better protected from shoddy abortion providers operating in dangerous conditions. As always, Texas will continue doing everything we can to protect the culture of life in our state.” 

Cecile Richards, president of Planned Parenthood Federation of America, said via Twitter, “The Supreme Court will allow #HB2 to take effect during legal proceedings. Devastating news—but this fight is far from over.” 

Kyleen Wright, president of Texans for Life Coalition and a Southern Baptist, tweeted, “Very pleased that #HB2 can be enforced with its added protections for both babies and their moms!” 

In addition to the hospital privilege requirements for doctors, the law prevents abortions beyond 20 weeks post-fertilization and requires doctors be present to monitor the administration of abortion-causing drugs, such as mifepristone, commonly known as RU-486.

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