The Supreme Court took off of its docket, and thus will not decide, a plea by the state of Oklahoma to revive a law that restricts doctors’ use of drugs rather than surgery to perform an abortion with the medication RU-486 and others. In a one-sentence order, the Court dismissed as “improvidently granted” the case of Cline v. Oklahoma Coalition for Reproductive Justice (docket 12-1094). In issuing other orders, the Court granted no new cases for review.

Meanwhile, a group of women’s health clinics and doctors in Texas asked that the Court block at least temporarily a new Texas law that forbids doctors to perform abortions at a clinic unless those physicians have professional privileges at a hospital within thirty miles of that site. The Fifth Circuit Court on Thursday allowed that requirement to go into effect, resulting in closing a number of abortion clinics across the state. The application to set aside that order was filed initially with Justice Antonin Scalia, who is the Circuit Justice for the geographic area that includes Texas. He has the authority to decide the issue himself, or share it with his colleagues.

The application is Planned Parenthood of Greater Texas Surgical Health Services v. Abbott (13A452). Justice Scalia immediately asked for the state to respond by 4 p.m. on Tuesday, November 12. The new Texas law also involved a broad restriction on doctors’ option of performing medical abortions with the drug RU-486 and other medications, and that, too, has been allowed to take effect at least in part. The abortion providers’ request to the Supreme Court on Monday, however, did not ask the Justices to take any action on that provision.

In other orders Monday, the Court chose to bypass a case seeking to test whether class-action lawsuits can be settled, with no real gain for members of the class. However, Chief Justice John G. Roberts, Jr., in a separate statement, said that at some point the Justices should review the use of the ancient “cy pres” doctrine in such settlements — a practice that is becoming more common. The denied case, involving a class action lawsuit against the social network Facebook, is Marek v. Lane (13-136). In settling a class-action lawsuit against Facebook for allowing businesses to use information from Facebook users’ pages about their commercial purchases or movie rentals, most of the class received no payment, and the money involved in the settlement either went to the lawyers who filed the case or to a new foundation set up to study online privacy issues.

In an unsigned summary decision, the Court unanimously overturned a Ninth Circuit Court decision that police act unconstitutionally if they enter a home in “hot pursuit” of a suspect without a warrant, if the crime is only a misdemeanor. The Court said that it had never ruled that the seriousness, or lack of it, of a crime controlled whether police entry into a home without a warrant was unconstitutional. It did not rule directly on the specific pursuit at issue, but told the Ninth Circuit to reconsider (Stanton v. Sims, 12-1217).

The Court continued its pattern of denying review of cases seeking to explore the extent of the personal right to a gun under the Second Amendment. This time, the Court declined to hear a claim that it is unconstitutional under that Amendment to deny gun rights for life to an individual who had been convicted of a minor crime. The case was Schrader v. Holder, docket 12-1443.

The Oklahoma medical abortion case had been granted review last June by the Court but, at that time, the Court asked the Oklahoma Supreme Court to clarify the scope of the 2011 state law that restricted medical abortion procedures. Last week, the state court answered the questions, saying that the state law was so broad that it would outlaw any abortions in the state using drugs rather than surgery.

The Justices had put their review of the Cline case on hold until after getting the state court’s reply. With that in hand, the Court simply chose to end its review of that case without a decision. That makes final the state court’s earlier decision striking down the law. That means that, at least for the time being, lower courts will be left to review the constitutionality of an increasing number of state laws that limit or ban medical abortions.

With the emergency application filed in the Texas case, the Court — or at least Justice Scalia — has pending for the first time a controversy over a state law requiring doctors to have admitting privileges at a nearby hospital before they may perform abortions at a clinic or in a doctor’s office. Texas included such a provision in its new anti-abortion law. A federal judge blocked the enforcement of that provision, finding that it would put an unconstitutional burden on the right of women to seek abortions. The Fifth Circuit Court, however, voted later last week to let that provision take effect.

Justice Scalia’s request to the state of Texas for a response to the application will leave that provision in effect for at least another eight days. The abortion providers, in their application, said that “in just the few short days since” the Fifth Circuit acted, “over one-third of the facilities providing abortions in Texas have been forced to stop providing that care and others have been forced to drastically reduce the number of patients to whom they are able to provide care. Already, appointments are being cancelled and women seeking abortions are being turned away.”

Recommended Citation: Lyle Denniston, Court won’t rule on RU-486 abortions, SCOTUSblog (Nov. 4, 2013, 9:34 AM), https://www.scotusblog.com/2013/11/court-wont-rule-on-ru-486-abortion/