Thoughts on Supreme Court’s Abortion Order and Changing the Status Quo

This afternoon, the Supreme Court on a 5-4 vote refused to overturn a temporary order of the United States Court of Appeals for the Fifth Circuit staying a federal district court order putting on hold a provision of a new Texas abortion law which “requires a physician performing an abortion to have admitting privileges at a hospital within 30 miles.”

The Court split along party/ideological lines, with the five Republican-appointed/conservative justices allowing Texas to enforce its law which will lead to rural Texas women indisputably having less access to abortion while lower courts consider the case and the four Democrat-appointed/liberal justices voting to keep the status quo and keep the law on hold, pending final disposition in the Fifth Circuit or the Supreme Court.

Putting my Remedies hat on for now, here are a few observations:

1. It is not unusual for the Court to deny a request to vacate an appellate court order staying a district court, it is unusual to have a concurrence to that order joined by three Justices (Scalia, Thomas, Alito) and a dissent by four Justices (Breyer, Ginsburg, Kagan, Sotomayor).  It is unusual to have any written opinion at all.

2. Although this is not a final ruling on the merits of the issue by any means, one of the key factors the Supreme Court considers in a case like this is how likely it is that one side or the other will win the case. The fact that 5 Justices refused to vacate the stay here is a pretty good indication that 5 Justices believe Texas is likely to win its argument that this law is constitutional and does not an undue burden on women’s access to abortion. Compare, for example, the stay order in Bush v. Gore, also written by Justice Scalia: “It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.”

3. Although Chief Justice Roberts and Justice Kennedy did not sign onto Justice Scalia’s opinon, they too voted to keep Texas’ law in place.

4. At one time in Remedies practice, when it came to temporary injunctions or stays, courts really focused on the status quo.  Justice Breyer in his dissent today focuses almost exclusively on how the Fifth Circuit is allowing the status quo to change while the legal question is close. Justice Scalia will have none of it: “The dissent declines to criticize that reasoning, though we are presumably meant to infer fromits disapproving comments about the stay’s ‘seriou[s] disrupt[ion of the] status quo,’ post, at 3, that the dissent believes preservation of the status quo—in which the lawat issue is not enforced—is in the public interest. Many citizens of Texas, whose elected representatives voted for the law, surely feel otherwise. But their views go unacknowledged by the dissent, which again fails to cite any ‘accepted standar[d]‘ requiring a court to delay enforcement of a state law that the court has determined is likely constitutional on the ground that the law threatens disruption of the status quo.” Justice Scalia’s rejection of the status quo represents yet another change in injunction practice before the Supreme Court, part of a broader change I plan to write about soon in which injunctions are harder for plaintiffs to get and easier for defendants to get blocked or overturned.  More on that next year.

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