Hello readers, and happy almost Thanksgiving! Whatever your views on the holiday or its circumstances may be, I hope that you eat good food and spend quality time with family and friends. The Supreme Court is on a bit of a “holiday” at the moment—last week, they only had one day of orders and opinions, and this week there was just one day of conference—but even during this downtime, the Court has managed to make some waves.
On Tuesday, November 19, the Supreme Court dismissed Planned Parenthood of Greater Texas Surgical Health Services v. Abbot, the case that I mentioned briefly at the end of one of my columns earlier this month. The case was a challenge to a restrictive Texas anti-abortion law, and was an expedited request from “a group of women’s health clinics and doctors in Texas” (henceforth “the clinics”) for the Supreme Court to “block at least temporarily a new Texas law that forbids doctors to perform abortions at a clinic unless those physicians have professional privileges at a hospital within thirty miles of that site” (from SCOTUSblog).
The law in question, explained by Bloomberg News, “requires doctors to have privileges at a hospital within 30 miles (48 kilometers) of clinics where they perform abortions” and also “puts new restrictions on drug-induced abortions,” although the case of Planned Parenthood of Greater Texas only addresses the 30-mile “professional privileges” aspect of the law. Due to the Supreme Court’s decision to dismiss the case, the ruling of the Fifth Circuit Court that upholds the law still stands. As a result, “facilities in Waco, Fort Worth, Killeen, McAllen, and Harlingen have been forced to close, eliminating abortion access in those cities” and now “20,000 women a year will lose access to abortion under the law and others will face delays, increasing the risk of complications,” Bloomberg News reports.
The clinics wanted to block the law’s statewide implementation while challenges to the law were brought to court, and while Judge Lee Yeakel of the United States District Court in Austin ruled that the law should be blocked, the United States Court of Appeals for the Fifth Circuit overturned that decision and held that the law should stand while being challenged in court (from the New York Times). The clinics continued their fight and petitioned the Supreme Court to block the law’s implementation, and the decision was made on November 19 to allow the law to be instated because the Court dismissed Planned Parenthood of Greater Texas.
As I explained a few weeks ago, Justice Scalia could have made this decision to dismiss or hear Planned Parenthood of Greater Texas unilaterally, because Scalia is the Circuit justice for Texas; interestingly, though, he took the matter to his colleagues, and in a 5-4 decision the case was dismissed. As SCOTUSblog’s Lyle Denniston reports, the majority consisted of Justice Scalia, his three “conservative counterparts” (Chief Justice Roberts and Justices Thomas and Alito), and, unsurprisingly, everyone’s favorite swing vote (Justice Kennedy). The minority, then, was made up of Justices Ginsburg, Breyer, Sotomayor, and Kagan. The clinics argued that the Texas law is unconstitutional under Planned Parenthood v. Casey’s “undue burden” requirement, which was defined as any “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” (from Oyez). However, the majority justified its dismissal of Planned Parenthood of Greater Texas by arguing 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” (from SCOTUSblog).
The minority took a similar tack, stating that the Texas law’s constitutionality was a “difficult question,” but also criticized the majority’s decision to dismiss Planned Parenthood of Greater Texas, saying that “the Fifth Circuit Court order in the case ‘seriously disrupts’ the status quo in Texas” and that “the women who are denied access to abortion while the law is in force will suffer permanent harm” (from SCOTUSblog). It seems strange to me that no mention of the constitutionality or unconstitutionality of Texas’ anti-abortion law was made, considering that both the district court and the Fifth Circuit Court directly addressed Planned Parenthood v. Casey and the “undue burden” rule in their decisions surrounding the law. The district court judge believed the law to be unconstitutional because it is “without a rational basis” and it “places a substantial obstacle in the path of a woman seeking an abortion,” while the appeals court held that “the rule is likely to be constitutional because it serves a legitimate state interest in regulating doctors and does not impose an ‘undue burden’ on the right to abortion” (from the New York Times). So why did both sides of the Supreme Court avoid the issue of constitutionality?
Perhaps because, as Lyle Denniston explains, the Fifth Circuit Court “cleared the way—at least temporarily—for the law to become effective” in overturning Judge Yeakel’s ruling of unconstitutionality, but that same court is “reviewing the constitutionality of the law on an expedited basis, with a hearing scheduled in January” (from SCOTUSblog). Therefore, the Supreme Court, in dismissing Planned Parenthood of Greater Texas, allowed for the law to be implemented, but is not barring the clinics from challenging the law’s constitutionality. Denniston says, “It seems likely that… the case would return to the Supreme Court for an ultimate test of [the professional privileges part of the law]’s validity,” so there is a small hope for the 20,000 women in Texas who will now lose access to abortions, but I’m not optimistic. If the Fifth Circuit struck down a temporary ban on the law, it’s reasonable to assume that it will uphold the law itself as constitutional. The same goes for the Supreme Court itself—a five-man majority (literally, five men) decided to dismiss the clinics’ plea to ban the law temporarily, so why would that same majority decide that the law itself was unconstitutional under Planned Parenthood v. Casey precedent? Although I’m interested to see what happens with these proceedings, unfortunately in the interim many women in Texas who need abortions may be denied ready access to them.