In an alarming 5-to-4 ruling, the Supreme Court turned away an emergency application to block a new Texas law that is impeding access to safe and legal abortion care in the state. The ruling leaves in place an order by the United States Court of Appeals for the Fifth Circuit that allowed the law go into effect while it considers an appeal.
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The Texas law requires doctors who perform abortions to have admitting privileges at a nearby hospital. A federal district judge, Lee Yeakel, ruled last month that this provision serves no medical purpose and improperly infringes on women's reproductive rights. The requirement forces a third of Texas' abortion doctors to stop offering the procedure. Judge Yeakel issued an injunction blocking the provision, which a three-judge panel of the appellate court promptly lifted.
The justices should have blocked the law as the appeal proceeds. The court's 1992 decision in Planned Parenthood v. Casey forbids state regulations that have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" — a principle this provision clearly violates.
Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito Jr. (Chief Justice John Roberts Jr. and Justice Anthony Kennedy did not join in the majority opinion but presumably voted to allow the law to go into effect), wrote that the plaintiffs had not met the "heavy" procedural burden of showing that the appeals court ruling was "a clear violation of accepted legal standards." But as Justice Stephen Breyer rightly noted in his dissent, "The longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional."
The Supreme Court's procedural decision will affect thousands of women who would have sought abortions at the clinics no longer offering that service. The justices should follow their own precedent and strike down the admitting privileges rule if and when they are asked to directly consider its constitutionality.
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