On Monday, reproductive rights advocates filed an emergency request with the Supreme Court, asking it to block enforcement of a part of HB 2, Texas’ massive omnibus anti-abortion bill, while an appeal of a lower court’s ruling moves ahead. Like the law itself, which was passed after two special sessions and in the shadow of Wendy Davis’ historic filibuster, the legal fight over the law’s constitutionality has moved forward quickly and raised a number of questions in the wake of confusing opinions issued by both the district court and federal court of appeals. Here’s where we stand in the legal challenge and what will likely come next.
How Did We Get Here?
On October 28, following a three-day trial, U.S. District Judge Lee Yeakel granted an injunction blocking the hospital admitting requirements in HB 2 and narrowing the medical abortion restrictions. Immediately after the ruling, attorneys for the State of Texas appealed and asked the federal appeals court for an emergency order blocking the effect of the district court ruling. Just days after, the Fifth Circuit Court of Appeals took the unusual step and stayed enforcement of that injunction while the appeal moved forward. That means Texas can move forward with enforcing the hospital admitting privileges law, despite the fact that the only court to review the totality of the law and evidence supporting it ruled it unconstitutional.
Following that Fifth Circuit decision, attorneys representing reproductive health-care providers filed an emergency request with the Supreme Court to block the Fifth Circuit’s ruling. The providers have asked the court to set aside the portion of the Fifth Circuit ruling that allows HB 2’s hospital admitting privileges to go into effect. The Fifth Circuit also narrowed the district court’s order blocking a portion of HB 2’s regulations on medication abortion, but Monday’s filing does not ask the Supreme Court to do anything about that portion of the ruling.
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What Can SCOTUS Do?
Monday’s request was filed with Justice Antonin Scalia, who has already taken some initial action in the matter. Why was the request filed with Justice Scalia? Because he’s the circuit justice for the geographic area that includes Texas.
Justice Scalia has the option of deciding the matter himself, or asking his colleagues to weigh in on the request to set aside the Fifth Circuit’s order. Justice Scalia could have ruled right after receiving the petition. But rather than ruling immediately, Justice Scalia has asked attorneys for the state to respond to Planned Parenthood’s filing by Tuesday, November 12, at 4:00 p.m. That means the law remains in effect until the Supreme Court decides whether or not it will step in. It also means Justice Scalia is open to arguments as to why the court should keep out of the fight right now.
Once attorneys for the State of Texas respond, Justice Scalia will decide whether to grant Planned Parenthood’s request or not. There’s no set time-frame for this decision, but given the request and the fact that he’s already taken some initial action on the request, there’s every reason to think the court would act “expeditiously,” as Brigitte Amiri of the American Civil Liberties Union’s Reproductive Freedom Project told reporters during a press call Monday.
Justice Scalia can decide to grant Planned Parenthood’s request on his own, or he can ask for help from the other Supreme Court justices. Should the Court grant Planned Parenthood’s request, all that would happen would be a return to the district court order that blocked the hospital admitting privileges and created a “health” exception in the medical abortion restriction. Attorneys for the State of Texas have appealed that ruling, and the Fifth Circuit has set that appeal for an expedited schedule to be heard in January. That means right now there’s no chance of the Roberts Court weighing in on the merits of HB 2. The only question before it is whether or not the Fifth Circuit got it wrong when it lifted the district court’s injunction.
If Justice Scalia denies the request, Planned Parenthood may have the option of re-filing with another justice or seeking review of the Fifth Circuit’s decision by the entire Fifth Circuit. The earlier decision lifting the injunction had been made by only a panel of judges. But it is difficult to chart those next steps without knowing how Justice Scalia will rule and why.
What Happens Next?
Attorneys for the State of Texas have until November 12 to file their response. So, until then, we wait. But either way, come January, the Fifth Circuit Court of Appeals will hear Texas’ appeal of the district court ruling. In lifting the injunction, the appeals court indicated it believed both the hospital admitting requirement and medication abortion restrictions were likely constitutional. In January, the appeals court will rule on that question. Whoever loses will almost certainly petition the Supreme Court to step in, which then would place the constitutionality of the restrictions before the Supreme Court—which is another way of saying this case is far from over, no matter what Justice Scalia does with Planned Parenthood’s request.