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

Law remains in effect at least until appeal is decided

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.

For more, check out our War on Women's Health page.

A note to readers: Bold and uncensored, The Austin Chronicle has been Austin’s independent news source for almost 40 years, expressing the community’s political and environmental concerns and supporting its active cultural scene. Now more than ever, we need your support to continue supplying Austin with independent, free press. If real news is important to you, please consider making a donation of $5, $10 or whatever you can afford, to help keep our journalism on stands.

Support the Chronicle  

More Abortion
Debunking Five Anti-Choice Lies This Session
Debunking Five Anti-Choice Lies This Session
No wonder why repro rights groups are using the mantra “Lies Into Laws”

Mary Tuma, April 24, 2019

Campus Carry Passes, Abortion Insurance Ban Fails
Campus Carry Carries
Dems strike last minute deal after hours of chubbing

Richard Whittaker, May 27, 2015

More Planned Parenthood
Paxton Bans State Employees From Donating Pay to Planned Parenthood
Paxton Bans State Employees From Donating Pay to Planned Parenthood
But they can still donate to an anti-choice group

Mary Tuma, Jan. 13, 2020

Abbott to Trump: Pay Us Money We Lost for Excluding Planned Parenthood
Abbott to Trump: Pay Us Money We Lost for Excluding Planned Parenthood
Texas guv sends a "pretty please" to the president

Mary Tuma, Jan. 25, 2018

More by Jordan Smith
'Chrome Underground' Goes Classic Car Hunting
'Chrome Underground' Goes Classic Car Hunting
Motoreum's Yusuf & Antonio talk about the biz and their reality TV debut

May 22, 2014

APD Brass Shifts Up, Down, Across
APD Brass Shifts Up, Down, Across
Musical chairs at Downtown HQ

May 9, 2014


U.S. Supreme Court, Planned Parenthood, abortion, reproductive rights, HB 2, courts, Whole Woman's Health, Antonin Scalia, Stephen Breyer, reproductive rights, abortion rights

One click gets you all the newsletters listed below

Breaking news, arts coverage, and daily events

Can't keep up with happenings around town? We can help.

Austin's queerest news and events

New recipes and food news delivered Mondays

All questions answered (satisfaction not guaranteed)

Information is power. Support the free press, so we can support Austin.   Support the Chronicle