The U.S. Supreme Court has stepped in and blocked theFifth Circuit Court of Appeals ruling that had shuttered all but eight of Texas' abortion clinics.
On October 2, the federal Fifth Circuit Court of Appeals issued a ruling allowing state officials to immediately begin enforcing the second part of House Bill 2 (the bill that state Sen. Wendy Davis famously filibustered against), while the state fought to overturn U.S. District Judge Lee Yeakel's ruling that the law is unconstitutional.
The Fifth Circuit ruling let the state implement a key provision of the law that required clinics to make costly upgrades to become ambulatory surgical centers, which most could not afford. The appeals court ruling summarily closed most of the remaining abortion clinics in the state, leaving about one million Texas women at least 150 miles from the nearest abortion provider.
The Fifth Circuit, considered one of the most conservative appeals courts in the country, argued that instating the requirements of HB2 would not place an unconstitutional "undue burden" on women. In her opinion, Circuit Court Judge Jennifer Walker Elrod said abortion providers could not prove that it would be an "undue burden" to Texas women seeking an abortion if the Lone Star State closed the bulk of its clinics, including every single abortion clinic south and west of San Antonio.
The ruling also shuttered abortion clinics in McAllen and El Paso that had reopened after Yeakel's ruling back in August. There were only clinics left in Houston, Dallas, Austin, San Antonio and Fort Worth. But then the Supreme Court got involved.
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In the wake of the Fifth Circuit's ruling, the plaintiffs -- Whole Women's Health, and others -- filed an emergency application to the Supreme Court, urging the Supremes to step in on the issue. The appeal was presented to Justice Antonin Scalia -- the justice tasked with handling emergency appeals for the area encompassed by the Fifth Circuit -- and then voted on by the nine. Issued on Tuesday evening, the stay vacated the Fifth Circuit's ruling on the admitting privileges requirement for clinics in McAllen and El Paso, meaning those clinics can legally reopen even though they have been unable to obtain hospital admitting privileges. The stay also vacated the ambulatory surgical center requirement, which potentially means the clinics that were forced to close could reopen and continue performing abortions.
Perhaps most importantly, the Supreme Court issuing the stay means the justices might actually hear the case once the Fifth Circuit's done with it.
Only Scalia, Justice Clarence Thomas and Justice Samuel Alito voted to deny the petition.
The application to vacate stay of final judgment pending appeal presented to Justice Scalia and by him referred to the court is granted in part and denied in part. The Court of Appeals' stay order with reference to the district court's order enjoining the admitting-privileges requirement as applied to the McAllen and El Paso clinics is vacated. The Court of Appeals' stay order with reference to the district court's order enjoining the ambulatory surgical center requirement is vacated. The application is denied in all other respects.
Justice Scalia, Justice Thomas, and Justice Alito would deny the application in its entirety.