Earlier in the month I wrote about the decision of the Fifth Circuit to leave in effect the Texas abortion law that made Wendy Davis modern day priestess of Baal as far as the left is concerned (see The Fifth Circuit Rules In Favor Of Women’s Health and Life):
The bill ultimately passed in a special session and was immediately appealed on two grounds by Planned Parenthood.
They objected on two basic grounds: that the requirement that the abortionist have admitting privileges at a hospital within 30 miles and that the abortionist must be qualified in the field of obstetrics and gynecology, and that any use of the abortion pill be done according the protocol approved by the Food and Drug Administration.
They did not ask for an injunction based on the law requiring abortuaries meet the same physical specifications as urgent care clinics and it did not challenge the law outlawing any abortion after 20 weeks.
Planned Parenthood appealed to the US Supreme Court to overturn the Fifth Circuit ruling pending a hearing in January. Yesterday, Planned Parenthood got the bad news. The Supreme Court upheld the Fifth Circuit and allowed the Texas law to go into effect. The impact is that abortion, for all intents and purposes, is illegal in substantial areas of Texas.
Justice Stephen G. Breyer wrote for the four dissenters, including Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Their dissenting opinion argued that the Fifth Circuit Court order in the case “seriously disrupts” the status quo in Texas. They said that the women who are denied access to abortion while the law is in force will suffer permanent harm. They did not give their view on whether the professional privileges law was unconstitutional, although they did say that was a “difficult question.”
The dissenters suggested that at least four members of the Court “will wish to consider” the constitutionality of the provision no matter what the court of appeals ultimately decides.
Justice Scalia wrote that the dissenters’ stance in favor of blocking the law’s effect “would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional.” He noted that the Fifth Circuit had based its order on four factors, and he argued that the dissenters were unable to refute any of those.
Planned Parenthood had a very difficult task in front of them. They had to find a reason why the well-established principle that the state can regulate medical practice did not apply in the case of abortion. They didn’t even try. To say they punted is not an overstatement.
Given the impact this will have on their abortion franchises in Texas it seems strange that Planned Parenthood’s lawyers could not have made a better case. A cynical person might conclude that they realize that this case is a loser on its merits but it has fundraising potential that outstrips the lost Texas revenue if it is milked for all it is worth.