None of these points appear to shake Texas from its “all for women’s health” mantra, but here’s one that should. The state claims in its Supreme Court brief that the absence of an abortion clinic in the entire western half of the state is of no concern because women in El Paso, where the two abortion clinics will have to close, can simply travel one mile across the state line to a clinic in nearby Santa Teresa, N. M. New Mexico, however, has not imposed any TRAP laws. It requires neither admitting privileges nor a hospital-like setting. So Texas’ interest in protecting the health of its abortion patients evidently stops at the state line even as it sends women seeking abortions in West Texas across that line

So far, I’ve talked only about policy and not about law, and it’s law that we assume the Supreme Court justices will consider. In June, just before the summer recess, the court ordered a stay of the Fifth Circuit decision, preserving the status quo until the justices decided whether to hear the appeal. If the court grants the case, the stay will last until the final decision. If the court turns the appeal down, the stay will dissolve and the clinics will close.

Granting the stay should have been automatic; of course keep things in place when the consequences of doing otherwise are so drastic. A stay requires the votes of five justices and, in fact, there were only five. Four justices noted their dissent: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. Justices who don’t agree with an administrative order like a stay don’t always make their dissent public. It’s a choice, and these four justices chose to go on the record as being willing to let three-quarters of the abortion clinics in Texas shut down without a Supreme Court hearing.

That leaves, of course, the other five: Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and — you guessed it — Anthony M. Kennedy. Justice Kennedy is the only justice left from the majority in Planned Parenthood v. Casey, the 1992 decision that by a vote of 5 to 4 preserved the constitutional right to abortion. The Casey decision, which remains the law, subjected abortion regulations to a new “undue burden” test, defining undue burden as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

That’s a definition both wordy and porous. In an article to be published in the Yale Law Journal titled “Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice,” my colleague Reva B. Siegel and I argue that under Casey, as properly understood and as informed by the court’s 2007 decision that upheld the Partial Birth Abortion Ban Act, the H.B. 2 requirements impose an undue burden and the Fifth Circuit was wrong to uphold them. (Five years ago, she and I published a book on the history of the abortion debate, available here as a free download from the Yale Law School library.)

In Casey, the court modified Roe v. Wade to empower the states to act throughout pregnancy — not just in later trimesters as in the earlier case — to protect both unborn life and maternal health. But the court limited the ways in which the state can do both those things, and it applied separate standards for each. To protect the unborn, the state can seek to dissuade a woman from having an abortion through such measures as a waiting period and mandatory counseling, both of which the Casey decision upheld. But at the end of the day, the state cannot prevent a woman from carrying out her decision to terminate a pregnancy; in the words of the opinion, the state can employ methods “calculated to inform the woman’s free choice, not hinder it.”

The court subjected health-related regulations to a separate analysis. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the court said. Reva Siegel and I argue that this means that health-related regulation of abortion must be consistent with ordinary medical practice and must actually serve the asserted purpose: protecting a pregnant woman’s health. If it serves no demonstrable health-related purpose, then the regulation most likely represents an effort by the state to protect unborn life by means that Casey rules out — means that hinder rather than inform, prevent rather than persuade.