Yesterday afternoon, by a 5-4 vote, the Supreme Court let stand the Texas anti-abortion law that will ultimately close most of the clinics in Texas. A brief history: After a successful filibuster by Wendy Davis in the regular session. Governor Perry called a special session in which the Texas Legislature passed and Governor Perry signed a bill that required admitting privileges for abortion doctors at nearby hospitals (knowing, of course, that many doctors performing abortions need to travel to remote parts of the state). This law, while ostensibly "protecting the State's interest" in unborn children, has the practical effect of closing many Texas clinics. A federal District Court judge placed a stay on the law pending a trial on the merits. That decision was appealed to the 5th Circuit Court of Appeals, which overturned the District Court's stay. That decision was appealed, on an emergency basis, to the Supreme Court. Justice Scalia hears emergency petitions for the 5th Circuit, but rather than affirming the 5th Circuit by himself, he presented the petition to the entire Court.
SCOTUSblog has a detailed write-up.
The majority in the now-painfully-familiar 5-4 vote opined that the petitioners had failed to meet their burden for a successful challenge to the 5th Circuit's decision. Although the decision was unsigned, we can be reasonably certain of who voted for which side.
The majority specifically included Justices Antonin Scalia, who wrote separately in a concurring opinion joined by Justices Samuel A. Alito, Jr., and Clarence Thomas. But Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy presumably voted with those three, because it would have taken five votes to act definitively on the plea by doctors and clinics when there were four Justices who wanted to block the law.
Justice Breyer wrote the dissenting opinion. According to the dissenters, the 5th Circuit ruling "seriously disrupts" the status quo in Texas by severely limiting the medical options of any woman seeking an abortion. As a result, women in Texas will suffer permanent harm.
Justice Scalia's concurring opinion is predictable:
Justice Scalia wrote that the dissenters’ stance in favor of blocking the law’s effect “would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional.”
This from the guy who didn't see any federalism problems in
Bush v. Gore.
How this will turn out is yet to be written, but rest assured that it will be back in the hands of the Supreme Court regardless of what the lower Courts do. And after yesterday's decision, I am nervous, very nervous of the status of Roe v. Wade.