Texas Abortion Law Provision Upheld by Supreme Court, for Now

Justices say they want to review entire abortion law's constitutionality.

Abortion rights supporters rally on the floor of the State Capitol rotunda in Austin, Texas, on July 12, 2013.
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A Texas law aimed at restricting access to abortions remains in effect following a Supreme Court vote to uphold one of its key provisions Tuesday, but the constitutionality of the whole measure is still being weighed by lower courts and will likely be back before the Supreme Court.

The five conservative justices all voted to uphold the requirement that doctors performing abortions have admitting privileges to a hospital within 30 miles of a clinic. Planned Parenthood and several abortion clinics in Texas filed a suit against the law claiming it will restrict women's access to an abortion, particularly in rural Texas. They said clinics would be forced to close because they could not fulfill the requirement, either because there is no major hospital close enough or that doctors who perform abortions would be refused admitting privileges. "Over one-third of the facilities providing abortions in Texas have been forced to stop providing that care and others have been forced to drastically reduce the number of patients to whom they are able to provide care," they argued in their appeal. "Already, appointments are being canceled and women seeking abortions are being turned away."

[READ: Federal Appeals Court Reinstates Texas Abortion Provision]


A dozen abortion doctors have tried to meet the law's requirements, but the hospitals have not responded to their requests, forcing the nearby clinics to cease performing abortions, according to USA Today, leaving at most 20 clinics open in the state where about 80,000 abortions are performed annually.

But Justice Antonin Scalia, writing for the majority, said it was unfair to block a provision of a state law that had yet to be found unconstitutional.

"[It] would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional," he wrote, in an opinion joined by Justices Samuel A. Alito, Jr., and Clarence Thomas.

Chief Justice John Roberts and Justice Anthony Kennedy did not join Scalia's opinion or write their own, but court observers point out they must have voted with the conservatives because five votes are needed to reach a decision.

[READ: Abortion Debate Begins in the Senate]

Justice Stephen Breyer, writing for the minority, was joined by his three liberal colleagues, Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. His opinion said they "will wish to consider" the constitutionality of the law's provision regardless of how the lower court, which is currently reviewing the law, rules.

The court wrangling began when a federal judge ruled in October that the requirement for doctors was unconstitutional and put up a "substantial obstacle" between women and the constitutional right to get an abortion. But the Fifth Circuit appellate court overturned that opinion, allowing the law to go into effect. That court is now considering the law's overall constitutionality and has scheduled a January hearing.

Both Tennessee and Utah have similar laws in effect. But several other states with twin laws have been suspended by the courts, including in Alabama, Kansas, Mississippi, North Dakota and Wisconsin, according to USA Today.

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