The XX Factor

Supreme Court Surprises Everyone, Allows Texas Abortion Clinics to Reopen. For Now.  

Pro-choicers and legislators protest Texas’s draconian abortion law in 2013.  

Photo by Erich Schlegel/Getty Images

Tuesday evening, the Supreme Court issued a reprieve for 13 abortion clinics in the state of Texas. The clinics had been closed after a ruling by the U.S. Court of Appeals for the 5th Circuit, which overturned a district court’s earlier stay on a new Texas law requiring abortion clinics to meet ambulatory surgical center standards. The standards are medically unnecessary, since abortion is a simple outpatient procedure or, in some cases, just a matter of taking a pill. As the American Congress of Gynecologists and Obstetricians noted in a press release denouncing the Texas law, it is “plainly intended to restrict the reproductive rights of women in Texas through a series of requirements that improperly regulate medical practice and interfere with the patient-physician relationship.” The Supreme Court largely sided with the original district court stay, which holds that Texas cannot enforce the draconian regulation while it’s being fought over in court.

The ruling is surprising. As Irin Carmon at MSNBC writes, “Either or both Chief Justice John Roberts and Justice Anthony Kennedy appear to have signed on with the court’s liberals; both voted to let an earlier portion of the law go into effect, which also closed more than a dozen clinics.” The earlier portion of the law, which has been upheld by the 5th Circuit, requires doctors who perform abortions to have hospital admitting privileges within 30 miles of their clinic. As with the requirement that abortion clinics meet surgical center standards, the hospital admitting privilege standard is medically unnecessary and clearly meant to force clinics, particularly in rural areas, to close.

The odds are very high that the Supreme Court is going to have to rule on the Texas law eventually, because while the appeals court has upheld one part of it and seems amenable to the rest, other appeals courts have struck down or stayed similar laws in other states. As Ian Millhiser at ThinkProgress noted earlier this month, the appeals court in its last ruling on the law, actually called “attention to the fact that their approach to abortion cases is at odds with the way other federal courts of appeals handle similar cases.” In other words, they are pretty much begging the Supreme Court to decide this. But since either Roberts or Kennedy—or both—can’t seem to decide how much they support disingenuous regulations that pretend to be about women’s health but are actually about regulating legal abortion out of existence, there’s no way to speculate from this stay how they are going to rule going forward. 

In the meantime, 13 clinics will likely reopen either immediately or soon, sparing many women in Texas who need abortions from scrambling desperately to get help in other states or turning to the black market for abortion-inducing drugs.