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Supreme Court Leaves Texas Abortion Laws in Effect

By Brett Snider, Esq. on November 20, 2013 | Last updated on March 21, 2019

The Supreme Court decided Tuesday to deny an appeal to block enforcement of Texas abortion laws, allowing the laws to remain in effect while the Fifth Circuit hears arguments to their validity.

The Associated Press reports that the High Court made a 5-4 decision to allow the state to continue enforcing the controversial abortion laws, including the provision requiring abortion providers to have admitting privileges at a local hospital.

Justice Breyer, writing in dissent, believes the issue will return to the Court again once the Fifth Circuit makes its decision.

Effect of the SCOTUS Decision

Writing for the majority, Justice Scalia responded on behalf of the Court to an application by Planned Parenthood to remove the stay placed on the district court's original ruling, the one that enjoined the state from enforcing the admitting privileges requirement in its recently passed abortion laws.

The stay was put in place shortly after the district court's decision by the Fifth Circuit, who allowed the law to go into effect citing a "strong showing" of the State's success on the merits.

Which brings us to SCOTUS' review of the Fifth Circuit's decision to issue the stay on the district court's judgment, a stay which Justice Scalia felt deserved to be upheld.

Citing Western Airlines, Inc. v. Teamsters, the majority found that unless the Fifth Circuit "demonstrably" erred in applying accepted standards, the appellate court's decision to issue a stay must be deferred to. Since five justices signed off on the idea that the Fifth Circuit properly applied the four-factor test in Nken v. Holder, there is no reason -- especially in light of the Fifth Circuit proceeding to answer the expedited case on the merits -- to vacate the stay.

So, until the Fifth Circuit decides the issue on the merits, at least after oral arguments in January, the admitting privileges provision remains in effect.

SCOTUS Dissent's Points to Future

Penning an equally long dissent for the High Court was Justice Breyer, joined by Justices Kagan, Sotomayor, and Ginsberg in arguing for the stay to be lifted while the Fifth Circuit works toward deciding the case on the merits.

Breyer's dissent largely focuses on the "public interest" prong of the Nken test, arguing that staying the law's enforcement does not serve to damage the public's interest because it essentially "would maintain that status quo" that existed prior to the law's enforcement. That status quo being the nearly 1/3 of abortion clinics which may be shuttered under the new law would remain open.

While Breyer makes some impassioned points, Justice Scalia is correct to point out that this "status quo" analysis is not the proper test for granting or vacating a stay. And it does little to consider the deeply held beliefs of those who voted for the law.

With an eye to the future, Breyer makes clear in the dissent that "at least four Members of this Court" want to consider the Texas abortion law's constitutionality regardless of the Fifth Circuit's eventual decision.

Guess this fight over admitting privileges and abortion in the Lone Star State won't be over anytime soon.

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