At this stage in the legal battle between Planned Parenthood and the state of Texas, the U.S. Supreme Court won’t block Texas’ new abortion laws.
U.S. District Judge Lee Yeakel of the Western District of Texas on Oct. 28 had enjoined elements of the new laws, largely holding the two statutes unconstitutional. But the U.S. Court of Appeals for the Fifth Circuit issued a stay reversing Yeakel’s injunction. Planned Parenthood then filed an application with the high court to vacate the stay.
On Nov. 19, the U.S. Supreme Court upheld the Fifth Circuit’s ruling and denied the application to vacate the circuit’s stay of the district court’s injunction.
The Planned Parenthood plaintiffs, in requesting an order to vacate the stay, had sought to stop the effectiveness of the new laws passed by the Texas Legislature.
The laws, presently in effect, require physicians performing abortions to have admitting privileges at a hospital within 30 miles and limit the use of abortion-inducing drugs.
Supreme Court Justice Antonin Scalia wrote the prevailing opinion in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott. Justices Clarence Thomas and Samuel Alito Jr. joined him.
Notably, Chief Justice John Roberts Jr. and Justice Anthony Kennedy neither signed the Scalia opinion nor the dissent, written by Justice Stephen Breyer and joined by justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. But since Planned Parenthood’s application to vacate the stay was rejected, as a matter of arithmetic Roberts and Kennedy must have voted with the Scalia wing.
In his opinion, Scalia wrote: “We may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’”
“Many citizens of Texas, whose elected representatives voted for the law,” might have their views “go unacknowledged” if a court fails to cite any accepted standard on the basis of which to delay enforcement of state laws that are “likely constitutional” but bars the laws’ effectiveness simply on “the ground that the law threatens disruption of the status quo,” he wrote.
Scalia adds that the Planned Parenthood plaintiffs “have not carried their heavy burden of showing” that allowing the news laws to go into effect “was a clear violation of accepted legal standards—which do not include a special ‘status quo’ standard for laws affecting abortion.”
In the dissent, Breyer wrote: “By putting Texas’ new law into immediate effect, it instantly leaves ’24 counties in the Rio GrandeValley with no abortion provider because those providers do not have admitting privileges and are unlikely to get them’ … and it may substantially reduce access to safe abortions elsewhere in Texas.”
Elizabeth Rose von Kreisler, an associate with Austin’s George Brothers Kincaid & Horton who represents the plaintiffs challenging the laws, did not immediately return a call or email.
Lauren Bean, a spokeswoman for the Office of Attorney General, issued the following statement on Nov. 20 regarding the decision: “These are commonsense—and perfectly constitutional—regulations that further the State’s interest in protecting the health and safety of Texas women, and we are pleased that the U.S. Supreme Court has ruled that HB 2 will remain in effect.”