In what is becoming the theme of this term of the U.S. Supreme Court, the Justices made a not-on-the-merits decision on a highly emotional issue with large immediate consequences. In this case, a majority of the Supremes (with Scalia, Thomas and Alito dissenting) overturned the 5th Circuit’s decision to let provisions of a Texas law aimed at shutting down most abortion clinics go into effect while a full appeal on the law’s constitutionality proceeded. MSNBC’s Irin Carmon has the basics:
The Supreme Court has temporarily reversed the devastating impact of Texas’s restrictive abortion law, blocking a law that earlier this month had closed all but eight legal abortion clinics in the second-largest state. The immediate result, a rare victory for abortion rights, is the expected reopening of 13 clinics that closed on October 2….
Of all the hundreds of abortion restrictions passed across the country since 2010, Texas’s omnibus abortion law has had the most profound impact, in part because of the state’s size, because it was the only law of its kind that was fully allowed to go into effect, and because its sweeping provisions have, combined, closed 80% of the state’s clinics, leaving nearly 1 million women of reproductive age at least a 300-mile roundtrip from a clinic….
The main provision the Supreme Court addressed Tuesday requires abortion clinics to spend millions of dollars to turn into mini-hospitals; it has had the most sweeping impact.
While the decision is most decidedly temporary, it provides a glimpse into the internal dynamics of the Court that could be significant:
Because the majority votes were not recorded, it is not clear how exactly Roberts and Kennedy voted, but at least one had to have voted with the majority, and it is notable that only three Justices chose to visibly dissent. Kennedy has not voted to strike down an abortion restriction since Planned Parenthood vs. Casey in 1992, when he struck down the part of a Pennsylvania law that required that a husband consent to an abortion. During his time on the Supreme Court, Roberts has never struck down an abortion restriction.
What makes yesterday’s action a bit ironic is that the three-judge 5th Circuit panel whose handiwork the high court upset had clearly sought to produce a SCOTUS review of abortion policy generally–or at least a clarification of the “undue burden” standard for abortion restrictions that would open the door to more laws like those enacted by Texas. That Supreme review could still happen, but how it would turn out is less predictable than ever.