The Supreme Court caught us all off-guard by releasing a separate order this afternoon, less than a week after receiving the state's briefs in the case. In the order, the court declined to step in to the Texas abortion restriction battle, at least for now.
In a 5-4 split along conservative-liberal lines, the Court declined to vacate a stay entered by the Fifth Circuit, which in practical terms means that the Texas abortion restrictions, most notably the rule requiring providers to have practicing privileges at a hospital within thirty miles of the clinic, will remain in effect, at least until the Fifth Circuit hears the expedited appeal of the case in January.
In the meantime, dozens of counties and thousands of women are left without access to abortion clinics, at least without a lengthy drive, since many rural providers do not have privileges and are unlikely to be able get them.
Breyer and the Dissenters Have a Point
As Justice Scalia points out, Justice Breyer's opinion doesn't track the test for vacating a stay. Instead, he presents a series of points that argue in favor of doing so, including the fact that the harm to the state here, a bit of temporarily trampled states' rights, needs to be measured against the permanent harm to the women who are prevented from getting an abortion due to the expected mass closures of rural clinics.
But Scalia, Thomas, and Alito Also Have a Point
But practicality isn't controlling law, is it? Justice Scalia, writing on behalf of himself and two other conservative Justices, first noted the controlling test, with the first two factors considered the most critical:
Plus, there's the matter of deference due to the Fifth Circuit's decision (the lower court's decision must be clearly erroneous). Add all of it up and it's an incredibly high bar -- one that the plaintiffs here didn't come close to reaching.
The Fifth Circuit held that the state made the required strong merits showing. The dissent only calls the question "difficult," which Scalia notes "[s]tanding alone, that observation cuts against vacatur, since the difficulty of the question is inversely proportional to the likelihood that a given answer will be clearly erroneous."
As for irreparable injury, Scalia and the Fifth Circuit made the federalism argument, arguing, based on precedent, that "''[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.'"
Those are the two most important factors. Tack on an arguable public interest in the state's laws, passed by the state's elected representatives, being enforced, and three out of four factors weigh in favor of leaving the stay in place.
Where are Chief Justice Roberts and Justice Kennedy?
Interestingly enough, the names of the Chief Justice and Justice Kennedy, the swing vote, were absent from either opinion. By simple math (four dissenters), we can assume they voted, along with Scalia, Thomas, and Alito, to deny the application to vacate the stay, but declined to join their concurrence.
Expect a Sequel
Justice Breyer noted that he suspected that this case was likely to return to the Supreme Court, stating that the constitutionality of the Texas law was a "difficult question. It is a question, I believe, that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit's ultimate decision."