These are interesting times, especially if you’re a Supreme Court observer. While the ruling on gay marriage—as well as recent rulings on Obamacare, housing discrimination, congressional districting, and more—was hotly anticipated, the court dropped a final surprise on Texas this afternoon: they issued a stay preventing Texas from implementing the policies of HB2, the famous 2013 omnibus abortion bill whose troubled passage has been marked by an equally troubled legal battle.
The Court issued the stay in response to a request from the plaintiffs in the most recent lawsuit challenging the constitutionality of HB2. The Fifth Circuit Court of Appeals had allowed almost all of the provisions of HB2 to go into effect earlier this month, with a short window before clinics would be required to comply. The plaintiffs in Whole Woman’s Health v. Cole, a group of abortion providers headlined by the Whole Woman’s Health clinics, had immediately asked the Fifth Circuit to stay its own ruling pending appeal, which the appeals court soon denied. Following that request, the plaintiffs took the issue to the Supreme Court, where the eventual appeal would be heard.
This isn’t the first time SCOTUS has gotten involved in HB2—last fall, a federal district judge in Austin issued a stay on the implementation of the bill’s provisions, and the Fifth Circuit promptly granted the state of Texas an injunction preventing that stay from going into effect. The Supreme Court overturned that injunction, which allowed roughly a dozen clinics in Texas that would have been forced to close to continue operating until the Fifth Circuit made its ruling. But it’s the clearest possible indication that the Supreme Court intends to take up abortion in its next term.
That’s no small thing, either. By granting the plaintiffs the stay, the court essentially guarantees that it’ll hear its first abortion case since Gonzalez v. Carhart, in 2006, and the one with the broadest implications since 1992’s Planned Parenthood v. Casey. A third of the court’s makeup has changed since the last time SCOTUS heard an abortion case, and only three of the current judges were on the court in the 1992 case.
In other words, Whole Woman’s Health v. Cole will be a major decision for abortion—not just in Texas but beyond. It’ll ultimately determine the constitutionality of the so-called TRAP laws, or targeted restrictions on abortion providers, which are frequently used to create conditions for operating that clinics are unable to meet, such as requiring doctors to have admitting privileges at nearby hospitals or clinic hallways to be a certain width. And while this has always been the arena in which both the opponents of HB2 and its supporters have desired for the decision to be made, until now there’s been no way to know if it would end up there, or what would happen when it did.
The eventual fate of HB2 is still a ways off—no earlier than next fall, and potentially as long as a year away—and today’s ruling only ensures that, until the Supreme Court finally weighs in on it, the law’s provisions will not be in effect. It was granted by a 5–4 margin, with the same justices who ruled in favor of overturning state bans on gay marriage ruling in favor of suspending the provisions of HB2 pending appeal.
(Photograph by AP Photo/J. Scott Applewhite)