Supreme Court refuses to stay enforcement of Texas law requiring abortionists to have hospital admitting privileges

By Dave Andrusko

Justice Antonin Scalia

Justice Antonin Scalia

The Supreme Court Tuesday rejected an appeal by pro-abortion plaintiffs for a stay, allowing Texas to implement a part of a new abortion law that requires abortionists to get admitting privileges at a hospital within 30 miles of the abortion clinic.

The vote to reject the stay was 5-4.

Justice Antonin Scalia wrote in support of the ruling and was joined by Justices Samuel Alito and Clarence Thomas. “Chief Justice John Roberts and Justice Anthony Kennedy did not write separately or join any opinion yesterday, but because it takes five votes to overturn the appellate ruling, it is clear that they voted with their conservative colleagues,” The Associated Press’s Mark Sherman wrote.

“This is good news both for the unborn and for the women of Texas, who are now better protected from shoddy abortion providers operating in dangerous conditions,” said Pro-Life Gov. Rick Perry. “As always, Texas will continue doing everything we can to protect the culture of life in our state.”

Added pro-life Texas Attorney General Gregory Abbott, “These are commonsense– and perfectly constitutional–regulations that further the state’s interest in protecting the health and safety of Texas women.”

The admitting privileges requirement was part of HB 2, a bill passed in July by the Texas Legislature and signed into law by Gov. Perry. The overall bill is best known for pro-abortion state Senator Wendy Davis’s filibuster which temporarily foiled the will of the legislature and the people of Texas. Davis subsequently used the enormous media attention she received as a springboard to announce that she was running for governor.

However, just days before the provision was to go into effect, federal judge Lee Yeakel blocked the provision, concluding that it “places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.” (See

However a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit disagreed. In a 20-page opinion, Judges Priscilla R. Owen, Jennifer Walker Elrod, and Catharina Haynes wrote, “[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.” (See

The abortionists and abortion clinics filed an emergency petition with the Supreme Court asking that the law be stopped while challenges went forward. Justice Antonin Scalia called for a response from the state of Texas by November 12 and shared it with his colleagues.

Justice Scalia’s four-page opinion was stinging in its rebuke of the four dissenters.

“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.”

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.”

Scalia examined the dissenter’s opinion and wrote that “it thus fails to allege any errors, let alone obvious errors, in the Court of Appeals’ determination that the two ‘most critical’ factors weighted in favor of the stay.” (He also wrote that the dissenters fared no better in rebutting the panel’s conclusion that the other two factors weighed in favor of the state of Texas.)

The full 5th U.S. Circuit Court of Appeals is expected to hear arguments in January, and the law will remain in effect at least until then.

Please join those who are following me on Twitter at Send your comments to