Portions of a Texas law that would dramatically reduce access to abortion are on hold, thanks to an order that the U.S. Supreme Court issued late Tuesday. And while it's not clear whether the reprieve is temporary or permanent, the Court's action ought to make abortion rights advocates feel at least a little more optimistic.
The law is the infamous clinic “safety” measure that Governor Rick Perry signed last year. It requires, among other things, that all abortion providers use facilities that meet the formal facility standards of “ambulatory surgery centers” and that physicians who work at such clinics have admitting privileges at nearby hospitals. Abortion rights advocates have warned that as few as seven abortion providers would remain open if the new standards take effect—and that, as a result, about one-sixth of the population would be at least 150 miles away from the nearest provider. Prominent physicians and organizations representing the medical establishment have said, repeatedly, that such requirements are not necessary for patient safety. (Read Jen Gunter’s QED story about this if you want more background.)
Abortion rights advocates filed a lawsuit challenging the Texas statute, citing prevailing legal doctrine that recognizes a woman’s right to get an abortion without “undue burden.” In August, a federal district judge declared the law unconstitutional, but earlier this month, a three-judge panel of the Fifth Circuit Court of Appeals essentially overruled the district judge and said that Texas officials could begin enforcing the new requirements. Now the Supreme Court has stepped in and wiped away (part of) that Circuit ruling, by issuing an order of its own. At least for the moment, Texas officials can’t enforce the new law and the clinics can stay open.
The legal saga will continue. First, that three-judge panel from the Fifth Circuit must actually rule on the merits of the lawsuit challenging the Texas law. They will most likely reject the suit and uphold the law. (Why else would they have blocked the district ruling from taking effect?) Once that happens, abortion rights advocates will ask the Supreme Court to take the case and the Court will probably agree.
And then? The order doesn’t say which justices voted in favor of it. But the list almost certainly included the four liberals and it probably included Anthony Kennedy, who has been the key swing vote on abortion cases. He has been the fifth vote to invalidate some restrictions (like the spousal notification requirements in Planned Parenthood v. Casey) and he has been the fifth vote to uphold others (like the partial-birth abortion ban in Gonzales v. Carhart.) If he voted in favor of Tuesday’s order, as seems likely, that could mean he thinks the restrictions in the Texas law go too far and violate a woman’s right to abortion. There’s even a possibility that Chief Justice John Roberts has doubts about the law, because the order mentions that Justices Samuel Alito, Antonin Scalia, and Clarence Thomas would have allowed the Texas law to take effect. It says nothing about Roberts.
Still, there’s no way to be certain about this. The Court’s order is just a “stay,” as opposed to a formal ruling. In theory, the Court should issue a stay when it expects to hear a case eventually—and allowing a lower court decision to go forward would change conditions permanently, in way that would limit the justices’ ability to adjudicate the matter. Both conditions were present here, which means Kennedy or Roberts or both might simply think the issue is too close a call to let the Circuit Court ruling remain in place, thereby changing reality before the justices can weigh in.
“The order suggests that at least five and perhaps six of the justices think that the Texas law may violate the Constitution—and they want to preserve their options,” Margo Schlanger, a professor of law at the University of Michigan, told me. “Without this order, many more clinics were going to close permanently. This order means that if, in the end, the Fifth Circuit or the Supreme Court strikes down the Texas statute, the facts on the ground won't have already undermined the impact of that decision.”
Andrew Koppelman, a law professor at Northwestern, was even more optimistic. "The Court has stood by and let states enact long waiting periods, require medically unnecessary ultrasound procedures, and harass abortion providers with regulations that have no purpose except to make them more difficult to operate," Koppelman said. "It upheld restrictions that imposed serious medical risks on some women. The Fifth Circuit evidently read the signals from the Court as an invitation to uphold Texas’s extraordinarily onerous restrictions. It turns out that there is a limit to how far the states can go in harassing abortion providers. That is unambiguously good news."
It’s going to be a while before the Supreme Court settles these questions once and for all. But, for now, the women of Texas have many more abortion options than they would have if the law were still in effect. That's no minor thing.
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EBOLA (BREAKING): A second health care worker from Texas Presbyterian Hospital has Ebola, the Centers for Disease Control announced early Wednesday morning. It's more evidence of a system breakdown at the hospital where Thomas Duncan got his care before dying. The CDC on Tuesday announced it would be sending special teams to Texas Presbyterian and any other hospital that sees Ebola patients, in order to manage patient care and protect workers from infection. CDC Director Tom Frieden said “I wish we had put a team like this on the ground the day the patient, the first patient, was diagnosed.” (Alan Cowell, New York Times, Tina Susman and Geoffrey Mohan, Los Angeles Times; Caroline Chen and Kelly Gilblom, Bloomberg)
ATTORNEY GENERAL: President Obama won’t be naming a successor to Eric Holder until after the election, in order to avoid entangling the eventual nominee—and Democratic candidates for Congress—in campaign politics. (Edward-Isaac Dovere, Politico)
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