Supreme Court lets stand Okla. ruling against abortion limit; Texas case next

The Supreme Court dismissed Oklahoma's appeal even as an emergency motion from Texas abortion providers to block new restrictions there landed on Justice Scalia's desk.

The US Supreme Court backed away from deciding a potential major abortion case in Oklahoma Monday as an escalating battle over state abortion restrictions in Texas arrived at the high court in the guise of an emergency motion.

In a one-line order, the high court dismissed a case examining an Oklahoma state law that made it more difficult for women to obtain chemically induced abortions.

The action lets stand an earlier decision by the Oklahoma Supreme Court striking down the new state law as a violation of a woman’s constitutionally protected right to obtain an abortion.

Lawyers representing abortion providers in Texas, meanwhile, filed an emergency motion Monday urging the high court to intervene in a case involving new restrictions on abortions in Texas.

At issue in the Texas case is a law that requires that anyone performing abortions have admitting privileges at a hospital within 30 miles of the clinic.

A federal judge ruled on Oct. 28 that the restriction was a meaningless bureaucratic requirement that imposed an undue burden on the right to obtain an abortion. The judge issued an injunction blocking that portion of the law from taking effect.

In appealing that decision, the Texas attorney general asked a federal appeals court to lift the judge’s injunction and allow the law to be fully enforced while the appeal was pending. The Fifth US Circuit Court of Appeals agreed, and late Thursday ordered the injunction lifted.

That action meant that any Texas clinics without hospital admitting privileges would be forced to stop performing abortions – until they obtained such privileges. In some cases the application process could take many months, clinic providers said. 

Estimates are that as many as 14 of the 35 abortion clinics in Texas – more than one third – have been forced to stop providing abortions because of the appeals court’s action.   

“Right now, women in vast swaths of Texas are being turned away at clinic doors because of a bogus law that attempts to do underhandedly what states cannot do directly – block women from accessing abortion services,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.

“We now look to the Supreme Court to protect women’s access to these essential health care services while we fight this critical battle,” she said.

In filing the emergency motion with the Supreme Court, the lawyers for the clinics asked the high court to quickly block enforcement of the new Texas law while the issue is being litigated before the appeals court.

Justice Antonin Scalia, whose responsibilities include addressing emergency motions from the Fifth Circuit, has given the Texas attorney general a week to file a response to the emergency motion.

A decision on the injunction would likely be issued soon after the Texas brief is received next week.

Oral argument in the underlying appeals court case is set for January. If the appeals court upholds the Texas law, clinic owners and their lawyers say they will appeal that decision to the US Supreme Court.

Abortion rights advocates say that both the Texas and Oklahoma laws are among several restrictive abortion provisions being enacted by conservative lawmakers in a number of states.

“We are seeing an onslaught like we’ve never seen before,” Ms. Northup of the Center for Reproductive
 Rights said in a conference call with reporters.

She said the new restrictions were “trumped up” efforts that purport to be aimed at bolstering the health and safety of women but are really designed to restrict women’s access to safe and effective abortions.

In the Oklahoma case, critics of the new law said that rather than making chemically-induced abortions safer, reliance on the old FDA-approved protocol would make them less safe or block them altogether.

The Oklahoma case entered the Supreme Court’s docket in June when the justices announced that they would take up an appeal filed by the Oklahoma Attorney General seeking to have the state supreme court’s decision reversed and the state law upheld.

It takes four justices to agree to hear a case and the court offered no explanation in June of why it wanted to hear the Oklahoma case. In addition, it offered no explanation on Monday as to why it had now decided to dismiss the appeal without reaching a decision.

After agreeing to hear the case in late June, the court asked the Oklahoma Supreme Court to provide a more detailed explanation of its decision to strike down the state statute.

Last week, the Oklahoma high court issued its response. The court said the Oklahoma restrictions were invalid because they were written so broadly that they would effectively ban chemically-induced abortions in the state.

At issue in Cline v. Oklahoma Coalition for Reproductive Justice (12-1094) was an Oklahoma law that required health-care centers offering chemically-induced abortions to follow the precise protocol and dosages established in 2000 when the Food and Drug Administration first approved the procedure.

In the years since, researchers and abortion providers have further refined the protocols and dosages to make chemically-induced abortions safer and more convenient for the patient. Medical experts say such innovation is common, and reliance upon such innovation is acceptable among medical professionals even when they differ from the original FDA approved protocol.

The high court’s action in dismissing the Oklahoma appeal does not carry the weight of a written opinion on the merits of the case. And it is unclear whether the court’s action was motivated by agreement with the lower court decision or some other factor.