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The Pulse

What the 6-3 Supreme Court ruling on Texas abortion law means

Jill Stanek Jill Stanek Follow Jill
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As most know by now, the U.S. Supreme Court ruled by a lopsided 6-3 majority on October 14 that Texas could not enforce that part of its 2013 omnibus pro-life law requiring abortion clinics to meet the same standards as other ambulatory surgical centers, this while the 5th Circuit Court of Appeals makes its decision on the case.

SCOTUS also blocked Texas from forcing abortionists at clinics in McAllen and El Paso to have admitting privileges within 30 miles of their clinics, also pending the 5th Circuit’s final decision. All other Texas abortionists must meet this requirement.

Otherwise, other prongs of the far-reaching statute are being enforced, and the contended issues are still in play. Most pro-lifers did not expect Chief Justice Roberts to side with the liberals, and many were surprised to see Justice Kennedy do the same.

Before I get to analysis of the votes, I’d like to untangle the chain of events, which has involved two lawsuits and many, many court decisions.

Passage of bill: June 18, 2013

HB 2 was signed into law three weeks after state Senator Wendy Davis’s (pictured right) infamous filibuster trying to block it. It includes:

  1. a ban on abortion at 20 weeks post-fertilization, at which point it is known preborn babies feel pain
  2. a requirement that abortionists have admitting privileges at a hospital within 30 miles of the clinic
  3. a requirement that the RU-486 chemical abortion regimen follow protocol approved by either the FDA or American Congress of Obstetricians and Gynecologists
  4. a requirement that abortion clinics meet the same standards as other ambulatory surgical centers

Planned Parenthood v Abbott: Sept-Oct 2013

On September 27, 2013, Planned Parenthood filed a lawsuit to block two of the first three parts of HB 2 before they were scheduled to take effect on October 29, 2013 the admitting privileges and RU-486 requirements.

I’m going to skip the details and get to the bottom line, which is that as of today Planned Parenthood has failed.

The only recourse Planned Parenthood now has is to ask SCOTUS to reverse the decision of the 5th Circuit Court of Appeals, and I explained on October 7 why it would be risky for the abortion industry to ask SCOTUS to hear a case on RU-486.

The ball is in Planned Parenthood’s court, while meanwhile the RU-486 requirement is currently in effect as well as the admitting privileges requirement for all abortion clinics save two, as described below.

Whole Woman’s Health v Lakey: Apr 2014-present

On April 3, 2014, five independent abortion clinics sued to block the fourth component of HB2 from taking effect on September 1, 2014, the ASC requirement. They also sued to block the admitting privileges requirement at two outlying facilities in McAllen and El Paso.

After a lower court judge intervened on behalf of the abortion industry, Texas Attorney General Greg Abbott (pictured left) asked the 5th Circuit to let the newly questioned parts of HB2 take effect while the state appealed.

On October 2, a 5th Circuit of three judges agreed to Abbott’s request.

On October 3, 13 of the remaining 21 abortion clinics in Texas closed.

The clinics filed an emergency appeal with the Supreme Court to block enforcement while they appealed to the full 5th Circuit.

On October 14, the Supreme Court agreed in a 6-3 decision.

All this means is clinics not up to ASC standards can remain open while their case is appealed, and abortionists in McAllen and El Paso can continue to abort without admitting privileges during the appeal process.

So here are the parts of HB2 in effect and not in effect at present. All parts of the law in italics or struck are in limbo. All other parts of the law are being enforced:

  1. a ban on abortion at 20 weeks post-fertilization, at which point it is known preborn babies feel pain
  2. a requirement that abortionists must have admitting privileges at a hospital within 30 miles of the clinic – except in McAllen and El Paso
  3. a requirement that the RU-486 chemical abortion regimen follow protocol approved by either the FDA or ACOG
  4. a requirement that abortion clinics meet the same standards as other ambulatory surgical centers

 What does the 6-3 Supreme Court split mean? 

There are two schools of thought when trying to read the tea leaves for the day this case may return to the Supreme Court.

The following opinion is being heard quite a bit among DC pro-lifers who study and work with the Supreme Court:

There is confidence SCOTUS will hear either this case soon or a case regarding regulation of RU-486.

Again, the 6-3 ruling did not overturn the parts of the Texas law in question. It simply prevented them from taking effect while the 5th Circuit debates the constitutionality of the law.

Kennedy, being the swing vote, likely did not want to prejudice himself by tipping his hand, thinking he is going to hear this case.

Kennedy joining with the liberals made the tally 5-3.

Since the decision was already 5-3, there was nothing for Roberts to gain by making it 5-4. Roberts is probably playing politics and wanting to keep dialogue open with the liberals by siding with them.

The other school of thought is more cynical. Fr. Ben Johnson  of  LifeSiteNews.com  expresses it well in an email statement:

Justice Roberts (pictured left) has cast some praiseworthy votes on issues affecting the pro-life movement. However, his vote suspending enforcement of HB2 allows subpar abortion facilities to go back into the business of preying on women and killing unborn children – and it makes Roberts partially responsible for their actions until the law is upheld.

Roberts is the author of an incomprehensible ruling upholding Obamacare, a facially unconstitutional bill that some believe represents the greatest expansion of abortion funding in U.S. history. And he has left conservative justices twisting as he voted against them on procedural issues.

I would like to believe when the final vote on HB2 comes that Justice Roberts will be inclined to follow the better angels of his nature and uphold the inherent dignity of life at every stage of development.

However, I could see the liberal bloc convincing him to ignore the underlying issues and rule on the law’s effect, as he did in McCullen v. Coakley. Although a win, that ruling simply said the anti-free speech zone around Massachusetts abortion facilities was too large.

The court’s liberals would be content to have a similar decision on HB2  - that eliminating abortion facilities for hundreds of miles places an “undue burden” on women’s “right” to an abortion under Planned Parenthood v. Casey - in the process upholding bad precedent. I hope everyone will pray for Justice Roberts’ impending decision.

One final thought. Notice the abortion industry has not yet touched the 20-week ban in a lawsuit. There isn’t any other explanation than it expects the 5th Circuit would uphold the ban, creating a circuit court split with the 9th Circuit, which struck down Arizona’s 20-week ban in 2013. In the event of a circuit split, SCOTUS would be likely to hear the merits of the case, which the industry likely fears. How do you think a Supreme Court vote would go?

Reprinted with permission from Jill Stanek

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