Yesterday, the Supreme Court voted to reject Planned Parenthood of Greater Texas' application to vacate the stay issued by the Fifth Circuit Court of Appeals, effectively allowing the admitting privileges provision in HB 2 to continue. The vote came down along party lines. The five judges appointed by Republicans voted to reject the attempt to block the law, and the four judges appointed by Democrats voted to maintain the “status quo” of abortion access in Texas by stopping the implementation of this provision while the Fifth Circuit Court considers Planned Parenthood of Greater Texas' appeal.
More on the decision, and what this means for Texas, below the jump. The definition of “status quo” was key in the court's decision. Both Justice Scalia and Justice Breyer cite the importance of maintaining the status quo in their support and opposition of the court's ruling.
For the conservative judges, the status quo applies to the action of the Supreme Court to intervene in the decision making process of the Fifth Circuit Court. Scalia wrote, “We may not vacate a stay entered by a court of appeals unless that court clearly and 'demonstrably' erred in its application of 'acceptable standards.'” For Scalia and the other four judges, the decision making process of the Fifth Circuit Court followed the law. Further, Scalia closed by pointing out that the “accepted legal standards…do not include a special 'status quo' standard for laws affecting abortion.”
Justice Breyer's dissenting opinion focused much more intently on the impact of the admitting privileges provision continuing to be in effect while the Fifth Circuit Court considers the appeal. A “certain level of access” was afforded to women in Texas before the admitting privileges provision went into effect, Breyer argues, and the District Court's original injunction (made moot by the Fifth Court's decision) would maintain this level of access during the appeals process.
Also in contention was whether the impact of the admitting privileges requirement places an “undue burden” on the citizens of Texas. Breyer specifically draws attention to the increased difficulty faced by women whose providers are forced to close or suspend services with the admitting privileges amendment in effect, saying:
The longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional… If the law is invalid, the injunction properly prevented the potential for serious physical or other harm to many women whose exercise of their constitutional right to obtain an abortion would be unduly burdened by the law. And although the injunction will ultimately be reinstated if the law is indeed invalid, the harms to the individual women whose rights it restricts while it remains in effect will be permanent.
Arguments will be heard at the Fifth Circuit Court of Appeals starting January 2014, but in the meantime, the admitting privileges requirement will be in effect. In the Rio Grande Valley, 24 counties stand to completely lose access to abortion providers within their borders. Women who relied on clinics throughout the state where no physician has admitting privileges will have to look elsewhere and travel long distances to receive care. According to a spokesperson for Planned Parenthood, one third of the health centers that had previously provided abortion services were impacted when the admitting privileges provision went into effect.
Perhaps for the conservative judges on the bench, these things do not add up to an “undue burden.” But for the women and families that face the cost of travel on top of fees for services and increased time away from their jobs and their homes, the burden may feel very heavy indeed.