Supreme Court Rejects Challenge to Texas Abortion Law

Judge Richard Posner, the leading judicial-scholar of our generation (think Oliver Wendell Holmes and Learned Hand), recently said in an interview:

"Well, I don't like the Supreme Court. I don't think it's a real court. I think of it as basically . . . it's like a House of Lords. It's a quasi-political body. President, Senate, House of Representatives, Supreme Court. It's very political. And they decide which cases to hear, which doesn't strike me as something judges should do. You should take what comes. When you decide which case to hear it means you've decided the cases ahead of time."

This week the justices proved him right. In a 5-4 decision, split along the usual ideological lines, the Supreme Court (SCOTUS) rejected Planned Parenthood's attempt to overturn the Fifth Circuit's decision overturning the district court's decision to stop the Texas abortion law from taking effect (an injunction, in the jargon). Got that?

In other words, the district court in Austin found the Texas abortion law (likely) unconstitutional and stopped it from taking effect. The Fifth Circuit said, "not so fast," and reinstated the law, setting oral arguments on the merits -- i.e., whether it is substantively constitutional -- for January 2014, but Planned Parenthood asked that the Supreme Court restore the district court's injunction while they fight it out in the courts.

The Court refused to do that: on procedural grounds. Justice Scalia wrote that granting Planned Parenthood's request "would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional." But this is no more than cloaking a pro-life decision in legal jargon so that it sounds authoritative.

In the end, however, this is simply a band-aid ruling. Once the Fifth Circuit (likely) upholds the Texas law, SCOTUS will then hear the case on the merits, as I noted previously.

But this will not happen until next term (starting in October 2014). Only four justices need to vote to decide to hear a case on the merits, a step the four dissenters will almost certainly take. In the meantime, one-third of abortion clinics in Texas will be shuttered. Whether you think this is a net good or negative, it's a reminder that elections have consequences.

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