Splitting five to four, Again....

Texas abortion law left in effect

By Lyle Denniston

Splitting five to four, the Supreme Court late Tuesday afternoon refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state. The Court had been studying the issue for the past week. The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.

The majority specifically included Justices Antonin Scalia, who wrote separately in a concurring opinion joined by Justices Samuel A. Alito, Jr., and Clarence Thomas. But Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy presumably voted with those three, because it would have taken five votes to act definitively on the plea by doctors and clinics when there were four Justices who wanted to block the law.

There was no indication in the opinions released by the Court that Roberts and Kennedy had not taken part, so it is a fair assumption that they provided the added votes needed. The specific order denying the application (13A452) was unsigned. Both Justice Scalia’s opinion and that of the dissenters referred to the result as the action of “the Court.”

The application had been filed with Justice Scalia, as the member of the Court who acts on emergency matters from the geographic region that includes Texas. He then shared the case with his eight colleagues.

The law requires any doctor in the state who is going to perform an abortion to have professional privileges to admit patients to a hospital within thirty miles of the site where the abortion will take place. The challengers had argued that this provision, enforced by a criminal fine of up to $4,000 for a violation, will have a particularly harsh impact on pregnant women in Texas’s rural areas.

Justice Stephen G. Breyer wrote for the four dissenters, including Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Their dissenting opinion argued that the Fifth Circuit Court order in the case “seriously disrupts” the status quo in Texas. They said that the women who are denied access to abortion while the law is in force will suffer permanent harm. They did not give their view on whether the professional privileges law was unconstitutional, although they did say that was a “difficult question.”

The dissenters suggested that at least four members of the Court “will wish to consider” the constitutionality of the provision no matter what the court of appeals ultimately decides.

Justice Scalia wrote that the dissenters’ stance in favor of blocking the law’s effect “would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional.” He noted that the Fifth Circuit had based its order on four factors, and he argued that the dissenters were unable to refute any of those.

A federal judge in Austin, District Judge Lee Yeakel, had ruled last month that the professional privileges requirement was unconstitutional, finding that it put up a “substantial obstacle” in the path of the constitutional right of women in Texas to terminate a pregnancy. The Fifth Circuit overturned that order, and cleared the way — at least temporarily — for the law to become effective. The Fifth Circuit is reviewing the constitutionality of the law on an expedited basis, with a hearing scheduled in January.

The Supreme Court’s split decision means that the privileges requirement will continue to limit abortions for at least the next two months, and perhaps longer. There is no timetable for the court of appeals to act. It seems likely that, whatever it decides, the case would return to the Supreme Court for an ultimate test of its validity.