The Volokh Conspiracy

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Abortion returns to the Supreme Court


Tuesday night, the Supreme Court issued an order to delay enforcement of key parts of Texas' stringent abortion clinic law until the U.S. Court of Appeals for the Fifth Circuit rules on the merits of a constitutional challenge to the law. While no opinion accompanied the order, the court noted that Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented from the decision. Here's more from SCOTUSBlog and The Post's Robert Barnes.

The Texas law—HB2—imposes a range of requirements on all facilities at which abortion is performed. Specifically, it requires such facilities to meet the requirements of ambulatory surgical centers and requires doctors performing abortions at such facilities to have admitting privileges at a hospital within 30 miles. When enacted, it was reported that these requirements would force all but half-dozen or so abortion clinics within the state to close. Before the law was enacted, there were approximately 40 abortion clinics within the state.

The district court had enjoined enforcement of these two requirements, and that injunction was stayed by the Fifth Circuit. The Supreme Court's order vacated the stay. As a consequence, the first requirement may not be enforced anywhere in the state, and the second requirement may not be enforced against two clinics in a remote part of the state that are involved in the litigation.

This case is likely to return to the Supreme Court later this term, and other abortion cases may reach the One First Street as well. Most observers expect some or all of this law will be upheld by the Fifth Circuit, which would create a circuit split. (The U.S. Court of Appeals for the Seventh Circuit struck down similar requirements last December, and SCOTUS denied certiorari over the summer.)

If certiorari were granted here, this case would prompt the court to revisit and clarify the meaning of Casey's "undue burden" standard. I doubt the underlying abortion right would be at issue, as I doubt there would be more than three votes to overturn Roe v. Wade. Even if Chief Justice John Roberts is willing to go that far, he is unlikely to do so unless it is absolutely necessary. That is, he is more likely to write or join an opinion narrowing the "undue burden" inquiry than to challenge Roe directly, much as the court did in Gonzales v. Carhart. Nonetheless, a decision narrowing the meaning of "undue burden" would make it much easier for states like Texas to enact laws with the purpose and effect of making it more difficult to obtain an abortion.

This is not the only abortion case that appears headed to the court. As I noted here, the appellate courts are split on the constitutionality of state-level restrictions on the use of abortion-inducing medications. Several states have enacted laws barring the off-label use of such drugs to induce abortions. As I understand it, such restrictions make it very difficult to use such drugs as abortifacients. Such rules have been upheld in several circuits, but not in the Ninth, and a cert petition is now pending in that case. (Arizona filed last month and replies are due November 10.)

With one clear circuit split and a second emerging, it seems abortion is likely to return to the Supreme Court sooner rather than later. So despite the court's refusal to hear a same-sex marriage case, it looks like it will be thrust back into the culture wars nonetheless.