For over a year now, the players in the battle over abortion in Texas have been clearly identified, and so has the power differential: The majority of the legislature supported the new laws that had the effect of shuttering most of the state’s abortion clinics, while most of the few Democrats in both the state House and Senate opposed them. District Judge Lee Yeakel, who is the first person to hear the lawsuits surrounding those laws, sympathizes with the plaintiffs, while the U.S. Fifth Circuit Court of Appeals—the judicial body to which those cases get kicked up upon appeal—tends to side with the state.
All of that has been well covered, but for the past year and a half, those have been the only players on the board, which has made the entire process feel like something akin to kabuki theater: Democrats in the lege would use stall tactics, including Wendy Davis’s famous filibuster, to try to prevent the majority from voting on the bill, but they’d ultimately lose. Abortion rights organizations would sue, get the response they wanted from Judge Yeakel, and then see that result overturned by the 5th Circuit. Ultimately, if the most powerful players on the board support HB2, then HB2 is going to happen, and all of the orange-shirted protesters, well-timed filibusters, and rulings from the lower district court can’t ultimately change any of that.
Yesterday, though, a new player arrived on the board: The U.S. Supreme Court overturned a stay placed by the 5th Circuit on an injunction issued by Judge Yeakel that was intended to prevent HB2 from going into effect pending the full appeal.
This battle has always loomed in the Supreme Court, but the steps to get it to them have been long and winding—and, crucially, there’s been no indication how the court, in its current incarnation, would rule. Stephen Breyer and Ruth Bader Ginsberg have consistently affirmed abortion rights, while Antonin Scalia and Clarence Thomas have found no constitutional right to abortion in their rulings. The rest of the court has spent little time on abortion cases—though Samuel Alito, a George W. Bush appointee, tends to side with Thomas and Scalia, while Obama appointees Elena Kagan and Sonia Sotomayor tend to side with Breyer and Ginsberg. Anthony Kennedy has long been a difficult read on abortion—finding a constitutional basis for it as a right, but seemingly comfortable with restrictions on that right—while Chief Justice John Roberts has only ruled on one abortion case, and while he joined the majority in upholding the so-called Partial-Birth Abortion Ban Act in 2007, he declined to join Thomas’s concurring opinion that contended that the court should also overturn Roe vs. Wade.
In other words: The U.S. Supreme Court, in its current form, has been a big question mark in terms of where it stands on abortion rights. But yesterday, Breyer, Ginsberg, Kagan, and Sotomayor—along with Kennedy and Roberts—all joined the majority of the 6-3 ruling to suspend the ambulatory surgical center requirement of HB2, as well as the admitting privileges requirement for the clinics in McAllen and El Paso, pending appeal.
The scope of the ruling is narrow: It’s only in effect until the 5th Circuit rules on the most recent lawsuit before it on its merits, which is expected to happen in the next few months, and it doesn’t overturn all of HB2, just the provisions listed above. But it’s also the first time that the fate of HB2 hasn’t been a foregone conclusion since well before Wendy Davis was wearing pink sneakers on the floor of the Senate.
Before the SCOTUS ruling, opponents of the bill soldiered on with what they knew was a losing battle, while supporters could rest assured that any defeats they suffered were, at worst, temporary setbacks. That’s been the framework for the entire abortion debate in Texas, from the moment the bill was proposed, and anyone who said differently was basically in denial.
Which means that even a narrow Supreme Court ruling is still a massive shift in the conversation. For the first time, this fight is uncertain—there is no higher court to appeal the SCOTUS decision to, and if Roberts and Kennedy joining with the majority indicates the direction they’re leaning on the bill overall, then it’s a dramatic change in how the entire endeavor has gone so far.
(AP Photo/J. Scott Applewhite)