Supreme Court Likely to Rule on Texas Abortion Safety Law

Ken Klukowski is Director, Center for Religious Liberty at Family Research Council. This article appeared on, November 19, 2013.

Abortion is likely going back to the U.S. Supreme Court in what will be a major case.

Pro-lifers won a victory Tuesday at the Supreme Court, albeit a temporary one. However, the justices also tipped their hand that they were likely to take up this case as the next big fight on abortion in America. The last abortion case was in 2007.

This case is Planned Parenthood v. Abbott, which my Breitbart News colleague Dr. Susan Berry has previously reported on. The case concerns H.B. 2: Texas' new law requiring abortion doctors to have admitting privileges at local hospitals to deal with complications, which also restricts chemical abortions involving RU-486.

The U.S. Court of Appeals for the Fifth Circuit upheld most of the law in a well-written opinion by Judge Priscilla Owen, reversing the judgment of a federal district court in Texas. This was only a stay while the appeal is ongoing. The Fifth Circuit is expediting that appeal, and a three-judge panel will hear arguments in Jan. 2014 to render a final judgment.

Abortion giant Planned Parenthood applied for an emergency stay from the U.S. Supreme Court to take H.B. 2 offline while the appeal is pending. On Monday, the Supreme Court denied that application by a 5-4 decision.

Justice Stephen Breyer wrote a dissent for the four liberal justices. Justice Antonin Scalia wrote an opinion concurring in the denial of the application to rebut Breyer's assertions, joined by Justices Clarence Thomas and Samuel Alito.

One noteworthy aspect of this split is that this is not a ruling on the merits; it merely denies a stay. That's important because when an appeals court decides whether to stay (i.e., put on ice) a trial court's ruling, that is normally the final word. The standard of review the Supreme Court applies to reverse an appeals court's decision is whether the lower court's decision was "clearly erroneous." In other words, the decision needs to stink like a dead fish that's been sitting in the sun for three days.

There's no Supreme Court precedent that makes it clear that Texas cannot pass such a law. Thus, the Fifth Circuit was not clearly wrong, so the Supreme Court was right not to reverse the court of appeals. It is disconcerting that four justices-including both of President Obama's appointees, Sonia Sotomayor and Elena Kagan-wanted to supersede the appeals court under what is supposed to be such a lenient standard.

But most interesting is that in Breyer's dissent, he added that the ultimate legal question of whether Texas' law is unconstitutional "is a difficult question" that "I believe... at least four Members of the Court will wish to consider."

Breyer was writing an opinion for four justices. It only takes four to grant a writ of certiorari to take a case for review. That means it is likely the U.S. Supreme Court will ultimately take this case, which will be the first abortion-rights case since 2007.

The Fifth Circuit will probably hand down a detailed decision on this expedited appeal sometime between February 2014 and April 2014. If so, there is a good chance that around October 2014 the issue of abortion will squarely be before the Supreme Court in a case that is sure to grab national attention, with a final decision in early 2015.