Justices correct not to issue a stay that would have stopped enforcement of Texas law requiring abortionists to have hospital admitting privileges


By Dave Andrusko

Left to right. Justice Samuel Alito, Justice Clarence Thomas, Justice Antonin Scalia.

Left to right. Justice Samuel Alito, Justice Clarence Thomas, Justice Antonin Scalia.

By contrast to the disappointing news coming out of Albuquerque, New Mexico [“Albuquerque voters reject Pain-Capable Unborn Child Ordinance”], pro-lifers could take cheer in the decision by the Supreme Court not to stop [“stay”] enforcement of Texas’s law requiring abortionists to have admitting privileges in a hospital within 30 miles of the abortion clinic [“Supreme Court refuses to stay enforcement of Texas law requiring abortionists to have hospital admitting privileges”].

Although the responses of the pro- and anti-life sides were predictable (see anything appearing on the pro-abortion editorial page of the New York Times), that shouldn’t change that “Even in an area of the law as hotly contested as abortion, there are some easy decisions,” as Carrie Severino of National Review Online put it.

Refusing to stay the decision of a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit that upheld a portion of the Texas law qualifies as just that.

In his opinion, Justice Antonin Scalia (writing for himself and Justices Clarence Thomas and Anthony Kennedy) cut to the chase in his first two paragraphs:

“We may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’ …The dissent promised to show that the Fifth Circuit committed such an error when it granted a stay in this case, but that promised goes unfilled.”

Justice Scalia suggested more than once that the High Court ought to show “great deference” to an appeals court (not to mention the legislative branch, which he also noted) unless they have clearly gone off the rails. In fact the 20-page opinion from Priscilla R. Owen, Jennifer Walker Elrod, and Catharina Haynes (which I just re-read) was quite eloquent.

Scalia noted that the Court of Appeals’ panel had concluded that it had to consider four factors when deciding whether to issue a stay and that the first two are “the most critical”–“whether the State made a strong showing that it was likely to succeed on the merits”; and “whether the State would have been irreparably injured absent a stay.”

The panel “analyzed the first factor at length and concluded that the State was likely to likely to prevail on the merits of the constitutional question,” Scalia wrote. (In the panel’s words, “[T]here is a substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion.”)

Justice Scalia astutely observes that “The dissent does not join issue with the conclusion; it says only that the question is ‘difficult.’”

With respect to the second “most critical” factor—the panel concluding that the state of Texas “faced irreparable harm” if the law was enjoined–Scalia wrote

“The dissent does not quarrel with that conclusion either. It thus fails to allege any error, let alone obvious error, in the Court of Appeals’ determination that the two ‘most critical’ factors weighted in favor of the stay.”

Scalia went on to write that the dissenters fared no better in rebutting the panel’s conclusion that the other two factors also weighed in favor of the state of Texas.

I could write more about the opinion which, while only four-pages long, was meaty. Instead let me end with Scalia’s withering conclusion:

“In sum, the dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors. And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional. Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards—which do not include a special ‘status quo’ standard for laws affecting abortion. The Court is correct to deny the application.”

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