U.S. Supreme Court

SCOTUS allows Texas abortion law to take effect; Scalia and Breyer duel over status quo


The U.S. Supreme Court on Tuesday afternoon refused to block a Texas law that requires abortion doctors to have formal admitting privileges at a hospital within 30 miles of their abortion clinics.

The Supreme Court’s order (PDF) included a dissent by Justice Stephen G. Breyer and a defense of the majority by Justice Antonin Scalia. The Los Angeles Times, the New York Times and SCOTUSblog have stories.

The split was apparently 5-4, though only two justices joined Scalia’s opinion concurring in the order. Breyer said that allowing the law to take effect “seriously disrupts” the status quo, while Scalia said that there is no “special ‘status quo’ standard for laws affecting abortion.”

A federal court had permanently enjoined the provision on admission privileges, finding it had no rational basis, but the New Orleans-based 5th U.S. Circuit Court of Appeals stayed the injunction pending the appeal.

“As a practical matter,” Breyer wrote, “the 5th Circuit’s decision to stay the injunction meant that abortion clinics in Texas whose physicians do not have admitting privileges at a hospital within 30 miles of the clinic were forced to cease offering abortions. And it means that women who were planning to receive abortions at those clinics were forced to go elsewhere—in some cases 100 miles or more—to obtain a safe abortion, or else not to obtain one at all.”

Breyer cited an estimate by Planned Parenthood that 20,000 women in the state won’t have access to abortions as a result of the law. His dissent was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Scalia said in the concurring opinion that Breyer’s analysis was inconsistent with the deference owed the 5th Circuit decision. “The dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors,” Scalia said. “And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional.”

Scalia’s statement was joined by Justices Clarence Thomas and Samuel A. Alito Jr.

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