This isn’t a final ruling on the merits. They simply affirmed the lower court’s decision to let the new restrictions take effect now while the parties continue to battle over their constitutionality in court.
The Oct. 31 appeals court ruling prompted women’s clinics in five cities to stop providing abortions. It also meant that women seeking an abortion 15 or more weeks into pregnancy had to travel to Dallas or Houston, the only cities with open facilities that could legally perform those procedures.
The law would require doctors to have privileges at a hospital within 30 miles (48 kilometers). The measure also puts new restrictions on drug-induced abortions, although those restrictions weren’t at issue in the Supreme Court appeal.
The decision: 5-4 to uphold the Fifth Circuit’s ruling vacating the district court’s stay of the new law, split exactly along ideological lines of course. I recommend reading Scalia’s concurrence and Breyer’s dissent — nine pages total — to see how the Court’s liberals approach the idea of the “public interest” in a case involving abortion. There are four things a court considers when deciding whether to grant a stay — the likelihood that the new law will be upheld, whether the state will be irreparably injured if the stay isn’t granted, whether third parties (i.e. women who want abortions and their doctors) will be irreparably injured, and where the “public interest” lies. The Fifth Circuit found that the law probably will be upheld, that the state would be irreparably injured if if a valid law was stayed even temporarily, and that the public interest lies with enforcement of that duly enacted law. Women and their doctors might be injured too, but that’s not enough to overcome the three factors in the state’s favor. Breyer essentially throws all of that out and argues that the new restrictions are a big change from the current abortion-on-demand regime, ergo the status quo should remain in place while the legal fight plays out. Nothing else matters except making sure that easy access to abortion continues for as long as possible. On the public interest question, in a case involving the killing of life in the womb and a law supported heavily by Texas voters (including women), he essentially finds … nothing. His only concession that there’s a valid interest on the pro-life side is when he concedes that the constitutional questions raised by the law are “difficult.” Easy prediction: All four of the Court’s liberal hacks will plow their way through those “difficult” questions to find the law unconstitutional next year. Only the Court’s conservatives, like Kennedy and Roberts, ever deviate from the party line in meaningful cases.
Here’s gubernatorial candidate and pro-abortion superstar Wendy Davis reassuring Texas voters that her goal is zero abortions, even though the percentage of time her side spends on this subject devoted to protecting the right to abortion versus discouraging women from exercising it is roughly 100/0.