The Supreme Court has managed to avoid the issue of abortion since 2007, but in a four-sentence order issued Monday afternoon temporarily blocking a Texas law, it all but promised the issue will be taken up in the next term, just in time for the 2016 presidential election.
Hundreds of new abortion restrictions have passed in states around the country since the court last weighed in, each baiting the justices to revisit their abortion precedent -- threatening to shut down dozens of clinics in the meantime. No law has been more immediately devastating than Texas's omnibus abortion law, part of which the justices just put on hold.
Thanks to the fifth vote of Justice Anthony Kennedy, Texas has been blocked from enforcing a law dictating that abortions can only take place in expensive mini-hospitals, which major doctors' associations say is medically unnecessary. Without explaining the justices' reasoning, the order says, "The Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito would deny the application" to block the 5th Circuit Court of Appeals' determination that the law doesn't violate women's constitutional rights.
The order says the law is only blocked until the justices can decide whether to take the case. It takes four votes for the Supreme Court to decide to hear a case. If the law goes into effect, only nine clinics in Texas can comply and stay open, in a state with 5.4 million women of reproductive age.
Texas Republican Gov. Greg Abbott released a statement vowing a vigorous defense of the law. "Texas will continue to fight for higher-quality healthcare standards for women while protecting our most vulnerable – the unborn, and I’m confident the Supreme Court will ultimately uphold this law," he wrote.
This is the second time the Supreme Court has blocked this exact same law, at an earlier round of litigation in October 2014. (At that stage, only three justices openly dissented from blocking the law. This time, Chief Justice John Roberts added his name.) The court in 2014 allowed a previous provision of the same law requiring abortion providers to have admitting privileges at local hospitals to go into effect, effectively cutting the number of clinics in the state from 40 to 20. The combined effect of both provisions would be to close nearly 80 percent of Texas's legal abortion clinics since the law was passed in 2013 over a highly publicized filibuster by Sen. Wendy Davis.
After a trial, a district court judge said the provision requiring all abortions to take place in ambulatory surgical centers violated women's rights, but on June 9, the 5th Circuit Court of Appeals signed off on it. The Supreme Court was the clinics' last hope to stay open.
The court still hasn't announced whether it will take a case on a different kind of clinic regulation that would have closed the last abortion provider in Mississippi. Final word is expected on the orders from this term's petitions on Tuesday. Attorneys for the clinics are hoping the court chooses the Texas case, because they won the Mississippi case and it is in a less developed stage procedurally.
“The justices have preserved Texas women’s few remaining options for safe and legal abortion care for the moment. Now it’s time to put a stop to these clinic shutdown laws once and for all,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, in a statement.
Laws like Texas's are known in the abortion rights community as TRAP laws (for targeted regulation of abortion providers). They are passed in the name of women’s safety, ultimately make abortion impossible to access. They represent an innovative strategy by abortion opponents who have been unable to convince the court to let them ban abortion outright.