The justices addressed two parts of the Texas law that the United States Court of Appeals for the Fifth Circuit had provisionally let stand while it considered an appeal. One of them required all abortion clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other required doctors performing abortions to have admitting privileges at a nearby hospital. The Supreme Court, in an unsigned order apparently reflecting the views of six justices, blocked the surgical-center requirement entirely and the admitting-privileges requirement as it applied to clinics in McAllen, Tex., and El Paso.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. said they would have allowed the law to be enforced.
These legal fights are about access, but they’re also about timing.
Texas bans abortions after twenty weeks. Women’s lives are not always set up in ways that allow them to simply drive hundreds of miles away, on any day they like, without making what can be complicated arrangements for work, school, or child care. For some, even gas money becomes a factor. (In that way, it would have worked as a regressive tax, too.) By the time everything is in place, a woman may have lost the chance to control her body and her future. And once you haven’t voted in an election, you’ve lost your chance—the vote won’t be re-run.
Robyn Pennacchia reviews why the admitting privileges requirement is spurious:
While this might sound reasonable if one doesn’t think too hard about it, the fact remains that you do not actually need your doctor to have “admitting privileges” in order to go to a hospital. If an emergency happens, you just go to the hospital emergency room, and they are required to care for you regardless of who your doctor is, whether or not you have even seen a doctor in the last 15 years, the reason you are there, and, indeed, whether or not you have insurance. In practice, a doctor having “admitting privileges” means pretty much nothing–but many hospitals, particularly in Texas, will not issue them to doctors performing abortions for fear of retribution from conservative donors and lobbyists.
Jonathan Adler expects more abortion-related news out of SCOTUS in the near future:
This case is likely to return to the Supreme Court later this term, and other abortion cases may reach the One First Street as well. Most observers expect some or all of this law will be upheld by the Fifth Circuit, which would create a circuit split. (The U.S. Court of Appeals for the Seventh Circuit struck down similar requirements last December, and SCOTUS denied certiorari over the summer.) …
This is not the only abortion case that appears headed to the court. As I noted here, the appellate courts are split on the constitutionality of state-level restrictions on the use of abortion-inducing medications. Several states have enacted laws barring the off-label use of such drugs to induce abortions. As I understand it, such restrictions make it very difficult to use such drugs as abortifacients. Such rules have been upheld in several circuits, but not in the Ninth, and a cert petition is now pending in that case. (Arizona filed last month and replies are due November 10.)