The U.S. Supreme Court, voting 5-4, on Tuesday evening refused to block a Texas law requiring doctors who perform abortions to have hospital admitting privileges within 30 miles of the abortion clinic.
Planned Parenthood of Greater Texas and a number of Texas women's health clinics had filed an emergency application with Justice Antonin Scalia on Nov. 1 in which they sought to vacate action by the U.S. Court of Appeals for the Fifth Circuit which allowed the law to take effect while an appeal of the law's constitutionality was pending. A federal district court had entered an injunction blocking the law, but the appellate court countermanded that by staying the injunction.
Justice Scalia referred the emergency application to the full court whose vote against the clinics divided along ideological lines.
Nancy Northup, president of the Center for Reproductive Rights, counsel to the clinics, said the hospital admitting requirement has halted abortion services at more than a dozen clinics across Texas.
“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," said Northup in a statement. “The promise of our constitution and our judicial system is the equal protection of our rights against attacks like this law singling out women and the doctors they depend on. Today’s decision fundamentally fails to fulfill that promise for Texas women."
In an opinion in which justices Clarence Thomas and Samuel Alito Jr. concurred, Scalia wrote, " 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. The Court is correct to deny the application."
Although their names were not affixed to Scalia's opinion, it was clear that the two other justices comprising the majority were Chief Justice John Roberts Jr. and Anthony Kennedy. Justice Stephen Breyer wrote a dissent which was joined by justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Breyer gave six reasons why the Fifth Circuit's stay allowing the law to take effect should be vacated, including that the stay seriously disrupts the status quo by leaving an estimated 20,000 women without the healthcare service and that the Fifth Circuit itself had agreed to expedite the challenge to the law.
"If the law is valid, then the District Court’s injunction harms the State by delaying for a few months a change to the longstanding status quo," wrote Breyer. "If the law is invalid, the injunction properly prevented the potential for serious physical or other harm to many women whose exercise of their constitutional right to obtain an abortion would be unduly burdened by the law."
Breyer also predicted that at least four justices would want to consider the underlying constitutional question regardless of the Fifth Circuit's ultimate decision.
The case now continues in the Fifth Circuit which will hear the merits in January.