Ever since the Republican landslide of 2010, conservative state legislatures around the country have been busily erecting barriers to abortion. The question is, how far can they go? At what point will the Supreme Court rule that these new laws have no legitimate motivation—improving patient safety, say, or guaranteeing informed consent—but are instead designed merely to make it burdensome for women to get abortions?1 Today brought a discouraging but oddly ambiguous omen on just how far the Court is likely to allow states to go:
The justices voted 5-4 to leave in effect a provision requiring doctors who perform abortions in clinics to have admitting privileges at a nearby hospital....Justice Antonin Scalia, writing in support of the high court order Tuesday, said the clinics could not overcome a heavy legal burden against overruling the appeals court. The justices may not do so “unless that court clearly and demonstrably erred,” Scalia said in an opinion that was joined by Justices Samuel Alito and Clarence Thomas.
Chief Justice John Roberts and Justice Anthony Kennedy did not write separately or join any opinion Tuesday, but because it takes five votes to overturn the appellate ruling, it is clear that they voted with their conservative colleagues.
This is discouraging because five justices voted to permit this Texas law to stand, despite abundant evidence that its only real purpose is to make it harder for clinics to hire doctors to perform abortions. But it's weirdly ambiguous because Roberts and Kennedy declined to join the majority opinion. Unfortunately, my guess is that this is mostly for technical reasons, since this case will probably be back before the Court after the circuit court issues its final ruling. When that happens, I suspect that both Roberts and Kennedy will come down pretty firmly on the side of allowing states to enact virtually anything short of an outright ban.
1In case you're not up on the lingo, these are known as TRAP laws—Targeted Regulation of Abortion Providers. They're nothing new, but enactment of TRAP laws picked up serious steam after the 2010 midterms. More here if you're interested.