Supreme Court Refuses 5-4 To Block Texas Anti-Abortion Law While Challenge Is Heard By Fifth Circuit

Jessica Mason Pieklo, senior legal analyst at RH Reality Check:

Late Tuesday afternoon, the Supreme Court refused to intervene in the battle over HB 2, Texas’ massive omnibus anti-abortion law. The 5-4 ruling refusing to reinstate a lower court’s injunction blocking the hospital admitting privileges portion of the law not only lets that provision remain in effect, it sets the stage for a future battle over the question of just how much access to abortion services a state can cut off before rendering the right to abortion meaningless.

The ruling came in response to a November 4 emergency petition filed by abortion providers with Justice Antonin Scalia, asking him to temporarily block the Texas law while the case proceeds on appeal. On October 28, following a three-day trial, a district court permanently blocked the admitting privileges portion of the law. But on October 31, following an emergency request by Texas Attorney General Greg Abbott, the Fifth Circuit Court of Appeals allowed the law to take effect while the appeal continued. The Fifth Circuit is the only federal court to allow this kind of law to take effect. District courts in Alabama, Mississippi, Wisconsin, and North Dakota have all blocked similar laws. [Bolds mine. - SB]

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Just for clarity, this is not the final word on the case. The Supreme Court has only intervened as far as allowing the law's challenged provision, the hospital admitting privileges requirement, to take effect while the case is heard before the Fifth Circuit. However, as Ms. Pieklo explains, quoting Justice Breyer:

The dissent also hones in on a key point underlying the fight over HB 2. Abortion opponents are able to accomplish through targeted clinic closures what they may not be able to do via judicial opinion: effectively overturn Roe v. Wade by rendering abortion impossible to access. “By putting Texas’ new law into immediate effect, it instantly leaves ’24 counties in the Rio Grande Valley … with no abortion provider because those providers do not have admitting privileges and are unlikely to to get them’ and it may substantially reduce access to safe abortions elsewhere in Texas,” Breyer wrote. “The longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional.” [Bolds mine. - SB]

We therefore have the effect of judicial process without ever having the due process itself. Time, tide and the progression of pregnancy wait for no man or (more to the point) woman; as a result of this ruling, some women will have unintended children, pregnancies leading to birth which, under Roe, the women were legally entitled to terminate. Worse, some women will surely die of pregnancies gone horribly wrong, with no way to terminate them. The blood of those women is on the hands of the Texas Legislature, Governor Perry and Attorney General Abbott... and the federal courts, if they insist on allowing this law to take effect while its constitutionality is being challenged.

AFTERTHOUGHT: Ed Kilgore at Political Animal has some clarifying thoughts.