Justices could hint at outcome in Texas abortion case
Washington — For a clue on how the Supreme Court may decide a major abortion case it heard Wednesday, look to its impending decision in a fight over abortion clinics in Louisiana.
The justices may not decide the high-profile case about regulation of abortion clinics in Texas until late June.
But an order could come any day in the Louisiana case in which clinics are asking the high court to block enforcement of a 2014 law that requires doctors who perform abortions to have admitting privileges at nearby hospitals. The law could leave the state with just one clinic in New Orleans, down from four, the clinics said.
The cases are at different stages in the legal process, but they involve similar laws and actions by the same federal appeals court, the 5th U.S. Circuit Court of Appeals in New Orleans.
A vote for the clinics in Louisiana could mean that Justice Anthony Kennedy, whose vote is crucial to both sides, also will be a decisive fifth vote in favor of abortion clinics in Texas.
“Let’s say he knew he was going to vote to overturn in Texas. Presumably he would be a fifth vote” for the clinics in Louisiana, said Carrie Severino, chief counsel of the conservative Judicial Crisis Network.
If the court is unwilling to intervene and instead allows the law to continue being enforced, it could mean that Kennedy is with the three more conservative justices in what could be a 4-4 tie in the Texas case. That outcome would allow the Texas law to take full effect, but would leave the issue unresolved nationally.
The justices are scheduled to meet Friday when they will take a preliminary vote on the Texas abortion case. Texas says it is trying to protect women’s health in rules that require doctors who perform abortions to have admitting privileges at nearby hospitals. Additionally, the state law forces clinics to meet hospital-like standards for outpatient surgery. The rules would cut the number of abortion clinics in the state by three-fourths, abortion providers say.
It was not clear from Wednesday’s argument where Kennedy stood. He expressed concern about the reach of the 2013 Texas law, but also asked questions of the clinics’ lawyer that indicated he might support Texas in at least part of the case that involves both admitting privileges and a requirement that abortions be performed in facilities that meet hospital-like surgery standards.
Louisiana’s law was struck down by a trial judge, but the appeals court said last week that the law could be enforced as the case makes its way through the courts. Writing for a unanimous three-judge panel, Judge Jennifer Elrod rejected the clinics’ argument that the appeals court should heed earlier Supreme Court action preventing Texas from fully implementing the regulations. The clinics contended that the Supreme Court is likely to side with the Texas clinics and would reverse any action against the Louisiana clinics. But Elrod said the clinics “misinterpret both the facts in our prior abortion cases and the Supreme Court’s rulings.”
The court’s process for dealing with emergency appeals is opaque. Orders are often issued with no explanation, although sometimes dissenting justices make clear the essence of their disagreement with the majority.
David Brown, staff attorney for the Center for Reproductive Rights, cautioned against reading too much into the court’s vote in the Louisiana case, even if the two cases are being considered at the same time.
“It’s on their minds that this is not just a Texas issue. It has impacted women in the region,” said Brown, who is representing the Louisiana clinics. The center also represents the Texas clinics.
“But there are a lot of issues the court has to consider other than the merits on an emergency application and they are being asked to rule in a very rapid manner. So it’s difficult to conclude anything,” he said.
The Texas clinics filed three emergency applications with the court over the clinic regulations each time the appeals court reversed a trial judge’s ruling blocking the regulations. A divided court twice voted to keep the surgery center standard on hold until a final decision in the case. The first time, the justices divided 5-4 in November 2013 to allow the law’s admitting privileges requirement to take effect.
Justice Stephen Breyer wrote for the liberal justices that among the reasons to keep the measure from being enforced is that the longer a “facility remains closed, the less likely it is ever to reopen.” Breyer also said at least four justices would want to rule on the law’s constitutionality, the topic of Wednesday’s Supreme Court hearing.
That same day, Justice Antonin Scalia wrote a forceful response to Breyer in which he wrote that Breyer promised to show why the appeals court was wrong, “but that promise goes unfulfilled.”
Scalia, a staunch abortion rights opponent, died last month and the court could be operating with eight justices for many months amid an impasse over confirming a successor.