A divided U.S. Supreme Court allowed Texas’ new abortion law to stand while litigation continues in the 5th U.S. Circuit Court of Appeals. That means that the law restricting abortion centers took effect Oct. 31, and as a result, about a third of the abortion centers in the state will close.
The 5th Circuit temporarily allowed the portion of the law that requires that abortionists have admitting privileges at a nearby hospital, after a lower court had blocked that part of the law. The circuit court will hear arguments on the constitutionality of the law in January, which will be an expedited hearing.
The law’s challengers had submitted an emergency application to the U.S. Supreme Court to stay the law as litigation continues. Justice Antonin Scalia handles emergency applications from Texas, but likely due to the controversial nature of the law, he had his eight colleagues weigh in.
The court rejected the application in an unsigned order, though the four liberal justices on the court wrote a dissent. (Download a PDF of the Supreme Court’s order.) Justice Stephen Breyer, writing for the dissenters, said the 5th Circuit ruling “seriously disrupts the status quo,” and there was more potential for harm in allowing the law to go forward than delaying the law a few months during litigation. He didn’t say outright that the dissenters oppose the Texas law: The constitutionality of the law is “a difficult question,” he said.
“The dissent believes preservation of the status quo—in which the law at issue is not enforced—is in the public interest,” Scalia responded, separately from the court. “Many citizens of Texas, whose elected representatives voted for the law, surely feel otherwise.”
Earlier this month, the Supreme Court rejected a medical abortion case from Oklahoma that it had previously agreed to hear, thus allowing a lower ruling against the law to stand. Pro-lifers were disappointed in that decision because it would have been the first abortion case argued before the high court in six years. But the Supreme Court may have rejected the Oklahoma case in favor of hearing the Texas case later this term, since the Texas law is broader.
In addition to restrictions on abortion centers, the Texas law imposed Food and Drug Administration regulations on the medical abortion drug RU-486, a portion of the law that the 5th Circuit struck down. Breyer noted in his dissent that the high court wanted to hear the case regardless of the 5th Circuit’s final decision.