This post also appears on scotusblog.com
Abortion clinics and doctors in Texas asked the Supreme Court on Friday night to delay enforcement of a 2013 state abortion law while an appeal to the Justices is pursued. Without a postponement, the lengthy application said, more than half of the existing nineteen clinics in Texas will have to close on July 1, and some of them might never reopen.
The delay request was filed with Justice Antonin Scalia, who handles emergency legal filings from the geographic region that includes Texas – the Fifth Circuit. He has the option of acting on his own or sharing the issue with his colleagues.
Late Friday afternoon, the U.S. Court of Appeals for the Fifth Circuit refused, by a two-to-one vote, to delay its June 9 ruling upholding most of the Texas law. It did modify slightly a part of that ruling in order to give one clinic — in McAllen, in the Rio Grande Valley — more time to adapt to the new restrictions.
Circuit Judge Edward C. Prado would have put the entire ruling on hold. His two colleagues, Circuit Judges Jennifer Walker Elrod and Catharina Haynes, turned down the challengers’ delay request except for the temporary reprieve for the McAllen clinic.
Because the law is now due to go into effect in twelve days, the Court is likely to act on the postponement application before then. The clinics and doctors will be filing a formal petition for review later, but the Court probably would not act on that until its next Term, starting in October. The Justices expect to finish their current Term at the end of this month or soon after that.
The Court is currently considering whether to review an appeal by the state of Mississippi to put back into effect a state abortion law that is generally understood to lead to the closing of the last remaining clinic in that state.
The Texas case is entirely separate from that Mississippi dispute. Two provisions of the Texas law are at issue: a requirement that any clinic performing abortions must have facilities equal to those of a surgical center, and any doctor performing abortions must have patient-admitting privileges at a nearby hospital.
In asking for a delay of those provisions Friday, the clinics and doctors told the Court that the effect of those limitations would mean a “seventy-five percent reduction in Texas abortion facilities in just a two-year period, creating a severe shortage of safe and legal abortion services in a state that is home to more than five million reproductive-age women.
Before the new law began taking effect, there were some 41 abortion clinics throughout Texas. Some clinics were able to reopen after the Supreme Court, in a temporary order last October, put some limits on the state law’s scope.
Under the new Fifth Circuit Court ruling, the application said, nineteen clinics are currently providing abortion services. But, without a delay by the Supreme Court of the lower court decision, it added, ten of those nineteen would have to close as of July 1. An eleventh clinic, in McAllen, it said,would be limited to providing abortions to women in four counties using a single doctor.
It also said that a twelfth facility that has applied for a state license in order to reopen would not be able to do so, under the Circuit Court ruling.
“The fate of a dozen clinics — and the many women who would otherwise obtain abortions at those clinics — will be determined by the outcome” of the postponement request, the application added.
The clinics and doctors have insisted all along that the two provisions they are challenging are not necessary medically at abortion clinics, and will only have the effect of denying access to more women seeking to end their pregnancies, even for medical reasons.
The state of Texas has strongly defended the surgical facilities and admitting privileges requirements, arguing that they are necessary to protect women’s health. State officials probably will get a chance to reply to the delay application before Justice Scalia of the full Court acts.