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Texas abortion law stands: Supreme Court splits 5-4 on hearing the case

A new Texas law requiring doctors performing abortions to have hospital admitting privileges has forced more than a dozen clinics in the state to close. The case is on a path back to the Supreme Court.

The US Supreme Court on Tuesday declined to block a tough new Texas law that has forced more than a dozen abortion clinics in the state to close their doors.

The justices split 5 to 4 on whether to block the law. The action came in a controversial case over abortion restrictions that is likely to find its way quickly back to the high court in the months ahead.

In the meantime, the law will remain in full effect pending an appeal at the New Orleans-based Fifth US Circuit Court of Appeals.

That court is set to hear oral arguments in January.

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The new law, which took effect last month, requires any physician performing an abortion at a Texas clinic to have admitting privileges at a hospital within 30 miles of the clinic.

Obtaining such privileges is difficult and the new requirement has caused roughly one-third of the state’s abortion clinics to close their doors while leaving an estimated 20,000 Texas women without such services, according to abortion rights advocates.

“This law is blocking women in Texas from getting a safe and legal medical procedure that has been their constitutionally protected right for 40 years,” said Cecil Richards, president of Planned Parenthood Federation of America, in a statement.

“This is outrageous and unacceptable,” she said.

Elizabeth Graham, director of Texas Right to Life, hailed the high court’s action as a significant step forward.

“This ruling signals that Texas is on the verge of a decisive legal pro-life victory,” she said. “The recent closures of abortion clinics, even if temporary, prove that [the Texas law] does have a major impact in protecting women and their unborn children from substandard care at abortion clinics.” 

The issue before the Supreme Court was whether the justices should intervene in the case to block the Texas law from being enforced while the expedited appeal to the Fifth Circuit is underway.

Abortion rights advocates had asked the courts to uphold an injunction issued by a federal judge who ruled last month that the new Texas law was overly restrictive of a woman’s right to obtain an abortion. After declaring the law unconstitutional, the judge issued an injunction blocking enforcement of the statute pending any appeals.

Texas officials appealed the decision to the Fifth Circuit and asked the appeals court to lift the federal judge’s injunction. The appeals court did so.

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Abortion providers in Texas filed an emergency appeal to the Supreme Court, asking the justices to preserve the status quo in Texas so that abortion clinics could remain open during the ongoing appeals.

In declining the block the law, Justice Antonin Scalia said that the appeals court’s earlier decision was based on its conclusion that Texas officials were likely to prevail in the case, with the new statute being upheld as constitutional.

The justices owed deference to the appeals court’s conclusion, he said.

“It would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional,” Justice Scalia wrote in a four-page order.

“Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case,” he said. “But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards.”

In a dissent, Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan said they would have taken action to block the new Texas law.

Justice Breyer, writing for the dissenters, said that the federal judge’s initial injunction would have preserved the status quo, allowing clinics to remain open and serve women in their communities as the litigation continued.

“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 get them,” Breyer wrote in a 5-page dissent. He added that the new law “may substantially reduce access to safe abortions elsewhere in Texas.”

Breyer said that the underlying legal issue concerning the constitutionality of the Texas law “is a difficult question.”

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“Lawmakers in Texas and other states have passed laws like this for the sole purpose of limiting access to safe, legal abortion, not promote women’s health,” Terri Burke, executive director of the ACLU of Texas, said in a statement.

Nancy Northup, president of the Center for Reproductive Rights, said the Texas law was “unworkable, unconscionable and unconstitutional.”

“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,” Ms. Northup said.