On Tuesday night, the Supreme Court issued a temporary order in the case against a sweeping Texas abortion law, from which three conservative justices dissented. The immediate practical effect has been to open the door for 13 clinics that closed on October 3 to reopen.
It’s been a long, twisting path here, and it’s not over yet. Here’s what’s happened, why it matters, and what comes next.
What is Texas’s omnibus abortion law?
Known in the legislature as HB2, the law was famously passed despite the 11-hour filibuster by State Senator Wendy Davis, now running for governor against Attorney General Greg Abbott, who is now tasked with defending the law in court. It includes several parts: A requirement that all abortion providers have admitting privileges to hospitals; one forcing doctors to use an outdated protocol for medication-induced abortion that narrows the window in which it can be used; an unconstitutional ban on abortion after 20 weeks that hasn’t been challenged in court; and a requirement that abortions only be performed in ambulatory surgical centers, which cost millions of dollars to build. Though Texas claims these restrictions will make women safer, reputable medical experts, including the American Medical Association and the American College of Obstetricians and Gynecologists, say they make women less safe, by making legal abortion less accessible or forcing women to have the procedure later, raising the risks.
Is that even legal?
So far, it depends which judge you ask. Under Planned Parenthood v. Casey, the controlling abortion precedent from 1992, a state can’t create an undue burden, which “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” before viability. Whether what Texas has done is an undue burden is very much an open question before the courts.
Texas’s law has been challenged two separate times. The first time, in Planned Parenthood v. Abbott, a district court judge found in October 2013 that the admitting privileges and medication-induced abortion provisions to be mostly unconstitutional, because they put an “undue burden” on women. The Fifth Circuit Court of Appeals promptly overruled the district judge, and when the Supreme Court refused to issue the same kind of stay it did this week, the law went to effect. As everyone predicted, hospitals rejected the abortion providers’ applications on largely political grounds, and the cumulative effect was for 20 clinics to close. (Some of the clinics closed before the law went into effect, anticipating being unable to comply.)
In the second round of litigation, Whole Woman’s Health v. Lakey, several clinics challenged the ambulatory surgical center requirements, which were slated to go into effect on September 1, 2014. Two clinics in underserved areas of South Texas — in El Paso and McAllen, on the western and eastern parts of the border with Mexico, respectively — challenged the admitting privileges provision as applied to them. At the eleventh hour, the same district court judge, Lee Yeakel, sided with the clinics, and the McAllen clinic reopened. Texas asked the Fifth Circuit Court of Appeals to step in and prevent the district court’s order from being enforced while it appealed, and they got their wish on October 2. The McAllen clinic closed, as did 13 other clinics that could not comply with the ambulatory surgical center requirements. That left only eight clinics open in Texas and nearly a million women of reproductive age a 300-mile round trip from a clinic.
What did the Supreme Court just do?
The last hope was for the clinics to appeal to the Supreme Court to undo the Fifth Circuit’s move and restore the district court’s decision. They got their wish, for now. That was excellent news for the 13 clinics that have only been closed for two weeks — any more and they might not have been able to reopen, said Stephanie Toti, an attorney with the Center for Reproductive Rights who litigated the case.
“It’s a very hopeful sign,” Toti added. “We’re thrilled that the Supreme Court lifted the stay and that as a result access to critical reproductive health care will be restored to regions of the state where it had been unavailable. We think it signals that although the Supreme Court has in recent years allowed the states some latitude in regulating abortion, Texas has just gone way too far.”
Have other states passed laws like Texas’s?
Yes. The ones with the most potential impact are in states near Texas that have passed admitting privileges requirements: Louisiana (which was just challenged by clinics there), Mississippi (where a court decision blocking that law is the only thing keeping the last clinic open), Alabama (where a district court judge blocked the law as unconstitutional, but an appeal awaits), and Oklahoma (which has been challenged in the state court system.) If the Supreme Court eventually signs off on such laws and they all go into effect, abortion access in the entire region will be decimated. Wisconsin’s admitting privileges law is also being challenged in federal court.
What happens next in the case?
The Fifth Circuit will have yet another go at it. Three different judges will be assigned to deliberate on the merits. Toti told msnbc that a briefing schedule has been set to complete on December 8, and that she expects the appeals court judges to hear oral argument by the end of the year or beginning of January. Depending on when the decision comes down — and based on past experience, the law is expected to be found constitutional, even without a real medical basis — the loser is expected to appeal to the Supreme Court. (The Fifth Circuit already denied a request in the first round of litigation to rehear the case en banc, with all of its judges, and there’s no reason to expect it would have a different answer in the second round.)
“They have deemed this case to be expedited,” said Toti of the appeals court, “So I expect we’ll have a decision by the first quarter of the next year. I think it’s very likely that this case will be headed to the Supreme Court on the merits. Depending on how long the appeals process takes in the Fifth Circuit, it could be heard this term or next.”
What will the Supreme Court consider?
The Supreme Court hasn’t taken a major abortion case since 2007, but given the split in appeals court decisions and the real-world impact of the laws, it is expected to weigh in on whether states need a good reason to shut dozens of abortion clinics. Justice Stephen Breyer said as much in his dissent from the order allowing the first round of laws to go into effect.
As usual, it all comes down to Justice Kennedy. “The question with Kennedy is whether he will stand by Casey as it was written,” said Priscilla Smith, director of the Program of the Study for Reproductive Justice at Yale Law School. “Under Casey, regulations that were designed to make it difficult for a woman to obtain an abortion are unconstitutional. Unnecessary regulations that do nothing to improve women’s health but instead are designed to close down clinics fit that bill.” Tuesday’s order isn’t definitive proof that Kennedy agrees, but it’s more reason for optimism than anything that’s come before.
Irin Carmon