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A closely divided 5-4 panel of the US Supreme Court refused to override the decision of the Fifth Circuit Court of Appeals and allowed the law to take effect. The law in question has already compelled about one third of the abortion clinics in Texas to close down due to their inability to meet harsh requirements.
One of the most criticized requirements of the Texas law is the requirement of any physician performing abortions to have admitting privileges at a qualified hospital or medical facility within a 30-mile radius. This requirement was difficult to comply with for many abortion clinics, particularly in rural regions of Texas where doctors performing abortions live hundreds of miles away, and in some cases need to be flown in.
The tone of the ruling was set by Justice Antonin Scalia, who said that “Reasonable minds can perhaps disagree about whether the [U.S. 5th Circuit] Court of Appeals should have granted a stay in this case … 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’ standards for laws affecting abortion.”
However, in his dissent, Justice Stephen Breyer wrote, “Although the injunction will ultimately be reinstated if the law is indeed invalid, the harms to the individual women whose rights it restricts while it remains in effect will be permanent.”
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Even though Breyer said that “at least four members” of the court will wish to consider the constitutionality of the law “irrespective of the 5th Circuit’s ultimate decision,” four did not make five, and the majority rejected the idea of intervening in the matter at this stage.
The law and this instant case has had a particularly tortuous track – first the law was blocked at a lower federal court, then the 5th Circuit put a stay on the stay issued by the lower court, and now the Supreme Court refused to put a stay on the 5th Circuit’s stay on the lower federal court’s stay.
