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Supreme Court Declines To Block Texas Admitting Privileges Law

November 20, 2013 — The Supreme Court in a 5-4 decision declined an emergency application asking it to block a new Texas law (HB 2) that requires abortion providers to have admitting privileges at nearby hospitals, the New York Times reports (Liptak, New York Times, 11/19).

In October, the 5th U.S. Circuit Court of Appeals ruled that the law's admitting privileges requirement and another provision requiring that physicians be present when administering medication abortion could take effect while the case is appealed. The court scheduled an expedited hearing for January, but several clinics in the state had to stop offering abortion services after the law took effect.

A Planned Parenthood affiliate and several other women's health care providers earlier this month filed the emergency application asking the high court to block enforcement of the law while the appeal continues (Women's Health Policy Report, 11/14).

The Supreme Court's decision not to intervene means that the law will remain in place at least until the 5th Circuit considers the case in January, according to the Texas Tribune (Aaronson, Texas Tribune, 11/19).

Majority Opinion

According to the Times, the high court split along ideological lines over what it means to maintain the status quo while the case proceeds through the courts.

In the majority, Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito, said the status quo is preserved when validly enacted state laws remain in place while the courts weigh their constitutionality (New York Times, 11/19). Chief Justice John Roberts and Justice Anthony Kennedy presumably joined the three justices in voting against the application, although they did not join Scalia's opinion (Denniston, SCOTUSblog, 11/19).

"Reasonable minds can perhaps disagree about whether the court of appeals should have granted a stay in this case," Scalia wrote, adding, "But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of the accepted legal standards -- which do not include a special 'status quo' standard for laws affecting abortion" (New York Times, 11/19).

Scalia added that blocking the law "would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional" (SCOTUSblog, 11/19).

Dissent

Meanwhile, Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, wrote in a dissenting opinion that they "would maintain the status quo" of allowing the state's clinics to continue providing abortion "while the lower courts consider this difficult, sensitive and controversial legal matter" (New York Times, 11/19). Breyer added, "Although the injunction will ultimately be reinstated if the law is indeed invalid, the harms to the individual women whose rights it restricts while it remains in effect will be permanent."

Breyer also said that the "underlying legal question -- whether the new Texas statute is constitutional -- is a difficult question ... that at least four members of this court will wish to consider irrespective of the 5th Circuit's ultimate decision" (Texas Tribune, 11/19).

The effect of allowing the state to enforce the law is to leave 24 counties in the Rio Grande Valley without abortion clinics, Breyer wrote, adding that the law may "substantially reduce access to safe abortions elsewhere in Texas" (New York Times, 11/19).

Reactions to Supreme Court Decision

Lauren Bean, a spokesperson for the state's attorney general's office, said, "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."

Planned Parenthood Federation of America President Cecile Richards said the ruling "is outrageous and unacceptable -- and also demonstrates why we need stronger federal protections for women's health." She added, "Your rights and your ability to make your own medical decisions should not depend on your ZIP code" (Savage, "Nation Now," Los Angeles Times, 11/19).

Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement, "The shattering stories of women turned away at clinic doors and denied their constitutional right to abortion are already numerous, and they multiply every single day this underhanded law is enforced."

State Sen. Wendy Davis (D) -- who drew national attention for her filibuster of the legislation and is now seeking the governorship -- called the law "an abuse of power by politicians in Austin." She added, "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" (Texas Tribune, 11/19).