Supremes Sustain HB 2, 5-4

Photo by Jana Birchum

On Tuesday evening, the U.S. Supreme Court declined to intervene and stay a provision of controversial state 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 upheld a decision by federal district Judge Lee Yeak­el, who ruled on Oct. 28 that the provision has no connection to maternal or fetal well-being and creates an undue burden on women seeking constitutionally protected abortion care. That ruling was immediately appealed by Texas, whose lawyers received an emergency stay from the 5th U.S. Circuit Court of Appeals, allowing the law to take effect while the overall appeal is pending.

On Tuesday, 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 5th Circuit's decision, Scalia wrote.

Justice Stephen Breyer – joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – dissented, 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 while the broader appeal, to be heard by the 5th Circuit in January, is pending. 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: More than a dozen clinics across the state, including the South Austin Planned Parenthood surgical center, have suspended providing abortions because their doctors have, to date, been unable to secure the admitting privileges required by the law. Hundreds of women with existing appointments at many clinics have been turned away, and imposition of the law has left the Rio Grande Valley without a single abortion provider.

Notably, neither Chief Justice John Rob­erts nor Justice Anthony Kennedy added their names to the opinion, though they presumably sided with the conservative jurists, creating the 5-4 decision to deny the providers' plea for intervention.

The decision was decried by advocates for reproductive rights, who argue that the provision may cause clinics to close, but won't stop women from seeking abortion. Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents Whole Woman's Health in the lawsuit, said in a statement: "The shattering stories of women turned away at clinic doors and denied their constitutional right to abortion are already numerous, and they multiply every single day this underhanded law is enforced."