The Supreme Court refused to block a series of restrictions in Texas's new abortion laws on Tuesday, meaning that a provision that could close up to a third of the state's clinics will be enforced even as it faces a court challenge. There are two provisions of the omnibus law in question: a measure requiring doctors performing abortions to have admitting privileges at a nearby hospital, and a series of restrictions on drug-induced abortions. The Supreme Court order was written by Justice Antonin Scalia, with Thomas and Alito concurring. Scalia writes, addressing an application for a stay by the lawsuit's plaintiffs:
It would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional. Reasonable minds can disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards — which do not include a special "status quo" standard for laws affecting abortion
Justices Kagan, Breyer, Sotomayor, and Ginsberg dissented. Because the decision was 5-4 in against the stay, that means Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy also voted with Scalia.
In late October, federal District Judge Lee Yeakel blocked the enforcement of the admitting privileges requirement on the grounds that it was "without a rational basis, and places a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus." The provision requires doctors to have admitting privileges at a hospital no more than 30 miles from their clinic. The judge also imposed limitations on a provision restricting drug-induced abortions. Yeakel's block was lifted by the 5th Circuit Court of Appeals days later, leading to the immediate closure of a portion of the clinics in the state. The 5th Circuit has a history of siding with anti-abortion advocates in its opinions. They'll hear oral arguments on the case in January. The court is hearing the case on an expedited basis.
The law in question was famously filibustered by Texas state legislator Wendy Davis, who is now running for governor. Other provisions in the law, including a 20-week abortion ban, were unchallenged in the suit brought by Planned Parenthood and other abortion rights groups.