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BREAKING: U.S. Supreme Court Declines to Intervene in HB 2 Lawsuit

Law remains in effect at least until appeal is decided

By Jordan Smith, 5:31PM, Tue. Nov. 19, 2013

Women protesting HB2 at the Capitol this summer
Women protesting HB2 at the Capitol this summer
Photo by Jana Birchum

The U.S. Supreme Court this afternoon declined to intervene and stay a provision of controversial House Bill 2 that requires abortion-performing doctors to have hospital admitting privileges within 30 miles of each facility where they provide care.

Abortion providers who sued to block the law, and won, are fighting to have that decision upheld. The state sought an emergency stay from the 5th U.S. Circuit Court of Appeals to allow the law to take effect while the overall appeal is pending and the Fifth Circuit agreed. The providers then appealed to the Supremes.

This afternoon, in a short opinion, Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito, declined to oblige, allowing the offending provision to remain in force. The Supremes owe "great deference" to the Fifth Circuit's decision, Scalia wrote, siding with Texas' position. And thus far, the providers – including Planned Parenthood and Whole Woman's Health, both of which provide abortion care in Austin – promise in court filings to "show that the Fifth Circuit committed [demonstrable] error when it granted a stay in this case...but that promise goes unfulfilled," reads the opinion on the application to vacate the Fifth Circuit's stay.

Justices Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – dissented from the opinion, writing that keeping the law enjoined would maintain the "status quo that existed in Texas prior to the enactment of the admitting privileges requirement" and thus would not unduly harm the state's interests. Moreover, Breyer wrote, enforcing the new provision "seriously disrupts that status quo." And while the state has denied that more than 22,000 women face barriers to access with the new law in effect, "it provides no assurance that a significant number of women seeking abortions will not be affected, and the District unquestionably found that 'there will be abortion clinics that will close.'" That has happened already, according to providers, leaving women without meaningful access to care, they have argued.

Ultimately, the Fifth Circuit's decision to expedite the appeal – to be considered in January – bolsters Breyer's "view that it is a mistake to disrupt the status quo so seriously before the Fifth Circuit has arrived at a consideration on the merits," he wrote, considering that clinics that close are less likely to reopen for services after being closed for a period of time.

Notably, neither Chief Justice John Roberts nor the court's usual swing vote, Justice Anthony Kennedy, added their names to the opinion, though presumably sided with the conservative jurists in denying the providers' plea for intervention.*

*The original post said neither Roberts nor Kennedy weighed in on the matter.

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