The Supreme Court has temporarily reversed the devastating impact of Texas’s restrictive abortion law, blocking a law that earlier this month had closed all but eight legal abortion clinics in the second-largest state. The immediate result, a rare victory for abortion rights, is the expected reopening of 13 clinics that closed on October 2.
Three members of the court – Antonin Scalia, Clarence Thomas and Samuel Alito – said they would have denied the clinics’ appeal entirely. Either or both Chief Justice John Roberts and Justice Anthony Kennedy appear to have signed on with the court’s liberals; both voted to let an earlier portion of the law to go into effect, which also closed more than a dozen clinics.
Tuesday’s action is temporary and doesn’t bind the justices’ votes if and when they hear the case in full. The 5th Circuit Court of Appeals, which had waved in the law earlier this month, still will have its say. Because the majority votes were not recorded, it is not clear how exactly Roberts and Kennedy voted, but at least one had to have voted with the majority, and it is notable that only three Justices chose to visibly dissent. Kennedy has not voted to strike down an abortion restriction since Planned Parenthood vs. Casey in 1992, when he struck down the part of a Pennsylvania law that required that a husband consent to an abortion. During his time on the Supreme Court, Roberts has never struck down an abortion restriction.
Of all the hundreds of abortion restrictions passed across the country since 2010, Texas’s omnibus abortion law has had the most profound impact, in part because of the state’s size, because it was the only law of its kind that was fully allowed to go into effect, and because its sweeping provisions have, combined, closed 80% of the state’s clinics, leaving nearly 1 million women of reproductive age at least a 300-mile roundtrip from a clinic.
The 5th Circuit Court of Appeals had allowed the law to go into effect on Oct. 2, despite a district court finding, after a full trial, that the law unduly burdened the constitutional rights of Texas’s women, particularly women in the Rio Grande Valley and in El Paso. Experts testified, for example, that the Rio Grande Valley had seen a rise in illegal abortion. The Supreme Court’s move also appeared to allow the two clinics that closed in that region – including Whole Woman’s Health in McAllen, which had temporarily resumed operations – to reopen.
“Tonight, our reality in Texas was recognized by SCOTUS and they ruled on the side of Texan women. We are so proud to have led this fight. I tip my hat to the team at the Center for Reproductive Rights, to my wonderful team at Whole Woman’s Health and to all of our colleagues who were part of this lawsuit. We did it. Tonight Texan woman got justice,” the clinic’s president and CEO, Amy Hagstrom Miller, said in a statement.
Cecile Richards, president of Planned Parenthood Federation of America, said in a statement, “We’re seeing the terrible impact these restrictions have on thousands of Texas women who effectively no longer have access to safe and legal abortion. We’re relieved that the court stepped in to stop this, and we hope this dangerous law is ultimately overturned completely,”
The main provision the Supreme Court addressed Tuesday requires abortion clinics to spend millions of dollars to turn into mini-hospitals; it has had the most sweeping impact. Combined with an earlier provision requiring abortion providers have hospital admitting privileges, which the Supreme Court allowed to take effect.
The Democratic candidate for governor, Wendy Davis, famously filibustered the abortion law in June 2013, surrounded by hundreds of fierce activists. But Texas Gov. Rick Perry subsequently convened another special session to pass it anyway. The law also includes an unconstitutional ban on abortion after 20 weeks (which has not been challenged in court) and restrictions on medication abortion (which the 9th Circuit Court of Appeals, ruling on an Arizona version of the law, said defied medical evidence and was an undue burden on women).
Davis, who has been trailing in the polls against Texas Attorney General Greg Abbott, went after her GOP challenger on abortion rights in the final debate of the gubernatorial campaign late last month. Texas has also been ground zero in the fight over access to the ballot box, with a slew of court rulings on its strict voter ID law. An appeals court on Tuesday ruled that the law could go into effect for the upcoming election.
Attorneys for the clinics had argued that if the clinics closed while their appeals proceeded, they might never reopen even if the law was ultimately found unconstitutional, because they would lose their licenses and their buildings.
If the Supreme Court didn’t act, they argued, “these clinics will soon have to lay off their staffs and close for good. Women who had appointments at these clinics, which have been providing safe abortion services for years, are being turned away. The handful of abortion providers remaining in Texas do not have the capacity to treat all of these women in the upcoming months, even if the women could travel the distances necessary to reach them. As a result, many women’s constitutional rights will be extinguished before the appellate process runs its course, and their lives will be permanently and profoundly altered by the denial of abortion services.”
The Supreme Court was their last hope, and this time, it came through.
“This fight against Texas’ sham abortion law is not over,” said Nancy Northup of the Center for Reproductive Rights. “HB2 [the law in question] was designed to gut the constitutional protections of Roe v. Wade and half of the state’s clinics remain closed. We will continue this legal battle until the rights of Texas women are restored.”
The court has yet to make a broader statement about how far states can go in blocking a woman’s path to an abortion. The controlling Supreme Court case, Planned Parenthood v. Casey, in which Justice Anthony Kennedy was the swing vote, said states couldn’t put an “undue burden” on women. But in its most recent Texas decision, the 5th Circuit Court of Appeals all but demanded the court re-evaluate that test, by essentially giving the state free rein to restrict abortion even without showing proof that the law had a legitimate purpose.
“In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” wrote George W. Bush appointee Jennifer Elrod in the decision. She added, in a quote that seemed designed to highlight the split in the lower courts that forms a common rationale for the Supreme Court to take a case, “We agree with Plaintiffs that some circuits have used the balancing test to enjoin abortion regulations; other circuits—including ours—have not.”
Six justices on the Supreme Court were unwilling to follow in her footsteps – for now.