Over the dissents of three Justices, the Supreme Court on Tuesday evening barred Texas from enforcing two parts of its new abortion-restriction law — one part as it applied throughout the state, the other as it applied to two clinics in the southwest part of the state.

The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery. And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic. That requirement can continue to be enforced elsewhere in Texas, the Court indicated.

Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open. At one time recently, Texas had forty-one clinics. The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.

The Court’s order will remain in effect while the U.S. Court of Appeals for the Fifth Circuit rules on a constitutional challenge to the two measures. That court had previously upheld the admitting privileges requirement as it applied all across the state. Most recently, it had blocked a new ruling by a judge in Austin that seemed to invalidate the two provisions statewide.

The Supreme Court gave no explanation for the four-sentence order. It noted that Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas would have refused to delay any part of the state requirements. They did not give their reasoning. It would have taken the votes of five Justices to block the provisions, so it appears that at least that number from among the other six Justices voted for the result. The Justices voting for the order were not noted.

In asking the Court to set aside, temporarily, the Fifth Circuit’s orders permitting enforcement of the two provisions, lawyers for the clinics had said that clinics closed as a result probably would not reopen unless those restrictions were lifted. They also contended that there had recently been an increase in the number of women seeking illegal abortions in areas where clinics could no longer provide services.

The seven clinics that were not affected by the new restrictions (and the eighth that is soon to open) were concentrated in the four largest metropolitan areas in the eastern part of the state. The lawyers had told the Court that, for the time being, there were no licensed facilities to provide abortions anywhere in the state south or west of San Antonio — “an area larger than most states.”

Texas officials had urged the Supreme Court not to block the new measures, arguing that they were necessary to protect the health of pregnant women in the state. They also argued that the challengers had exaggerated the practical impact of the new restrictions, and that most women would continue to have access to abortions within what they said was a reasonable driving distance.

The Fifth Circuit, in allowing the restrictions to go into or remain in effect, had found that they would not impose an “undue burden” on a significant fraction of the women in the state who would need abortion services.

The Supreme Court’s order is not a final ruling on the constitutionality of the new limitations, but is a strong indication that the state may have difficulty defending them, at least as statewide measures.

The Court’s order marked the first time in the Justices’ new Term that the abortion controversy had returned. There may be other tests of the Court’s current view on that controversy later in the Term.

Recommended Citation: Lyle Denniston, Court blocks abortion limits in Texas, SCOTUSblog (Oct. 14, 2014, 7:08 PM), https://www.scotusblog.com/2014/10/court-blocks-abortion-limits-in-texas/