On Tuesday, the U.S. Supreme Court granted an application to block parts of H.B. 2, Texas’s abortion law made famous by State Sen. Wendy Davis’ 11-hour filibuster from going into effect while the case is pending.
In Whole Women’s Health v. Lakey, a federal district court struck down as unconstitutional H.B. 2’s requirements that doctors at abortion clinics have admitting privileges at local hospitals and that abortion clinics upgrade their facilities to meet standards set for ambulatory surgical centers. The district court found these provisions of H.B. 2 failed the Supreme Court’s “undue burden” test, established in Planned Parenthood v. Casey (1992). Under Casey, a state may not pass regulations with the “purpose or effect of placing a substantial burden in the path of a woman seeking an abortion,” but in Gonzalez v. Carhart (2007), the Court held that such regulations are subject only to rational basis review—the lowest standard of review –which requires that a law be rationally related to a legitimate state interest.
Texas sought emergency relief from the U.S. Court of Appeals for the Fifth Circuit asking the court to stay the district court’s opinion, which was issued at 4:45pm the Friday before the ambulatory surgical center provision was supposed to go into effect, and allow the law to go into effect pending an appeal by the state. A three-judge panel of the Fifth Circuit granted the state’s motion for a stay, with the exception of a limited set of regulations for a clinic in El Paso, finding that Texas had demonstrated that it was likely to succeed on the merits.
The full Fifth Circuit declined plaintiff’s invitation to reconsider the panel’s decision, but in a brief order yesterday, the Supreme Court overturned the stay pending appeal. The order indicates that Justices Antonin Scalia, Clarence Thomas and Samuel Alito would have denied the application and allowed the law to go into effect.
The Supreme Court did not explain why it vacated the stay, but this does not mean the challengers of H.B. 2 are assured victory if the case eventually reaches the Supreme Court. The purpose of a stay is to preserve the status quo while a challenge is pending in court. Thus, Texas cannot enforce those portions of H.B. 2 that were ruled unconstitutional by the trial judge while its appeal is pending before the Fifth Circuit.
This is just one of many cases across the country dealing with abortion regulations. From Arizona to Mississippi to Wisconsin, many state abortion laws are currently being challenged, making it highly likely that the Supreme Court may be asked to weigh in on these issues in the near future.
