Forgot to note this over the weekend.
Right there with them
The Supreme Court handed down a brief order Friday allowing four Louisiana abortion clinics to reopen after they were closed due to a recent decision by a conservative federal appeals court.
Last week, an especially conservative panel of the United States Court of Appeals for the Fifth Circuit handed down an “emergency” decision permitting an anti-abortion Louisiana law to go into effect. Under this law, physicians cannot perform abortions unless they have admitting privileges at a nearby hospital — an increasingly common requirement masterminded by an anti-abortion group that drafts model bills for state legislatures. A challenge to a similar Texas law is currently pending before the justices.
The Supreme Court’s order temporarily suspends the Louisiana law, effectively preventing the Fifth Circuit’s Wednesday decision from taking effect. Only Justice Clarence Thomas explicitly dissented from the Court’s order.
Monday’s order from the Supreme Court is not surprising — indeed, the most surprising thing is that the Fifth Circuit permitted the Louisiana law to briefly take effect despite clear signals from the Supreme Court that they should not do so. The justices twice stayed Fifth Circuit decisions permitting Texas’ similar, if more comprehensive, anti-abortion law from taking effect. The first time, the Supreme Court issued a partial stay permitting two clinics to be exempt from Texas’s new credentialing requirements for abortion doctors. The second time, the justices handed down a more comprehensive stay of what may be the Fifth Circuit’s most aggressive anti-abortion decision.
See here and here for a bit of background. ThinkProgress then goes on to explain why this order from SCOTUS is different from every other order from SCOTUS.
Friday afternoon, the Supreme Court handed down a very brief order allowing several Louisiana abortion clinics to reopen after a conservative federal appeals court forced them to shut down. Yet, while the Supreme Court’s order was very short — only slightly more than a paragraph long — it contained 14 more words than such an order normally would. And those 14 words appear to be a direct swipe at the appeals court that shut down Louisiana’s clinics in the first place.
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Just one week before the Supreme Court heard these arguments, however, the Fifth Circuit handed down another anti-abortion decision. In June Medical Services v. Gee, the Fifth Circuit granted an “emergency” motion reinstating a Louisiana law that was expected to shut down all but one of that state’s abortion clinics. The Louisiana law at issue in June Medical Services closely resembles a provision of the Texas law at issue in Whole Woman’s Health.
The Fifth Circuit’s order in June Medical Services was surprising, largely because the Supreme Court had already dropped some pretty big clues that a majority of the justices disapprove of the Fifth Circuit’s decisions forcing abortion clinics to close. Among other things, the justices stayed the Fifth Circuit’s Whole Woman’s Health decision pending the Supreme Court’s own resolution of the case — effectively enabling many Texas abortion clinics to remain open that would be closed if the Fifth Circuit’s order were still in effect.
Nevertheless, the Fifth Circuit decided not to take the hint that Texas-style attempts to shut down clinics should be placed on hold. Instead, the Fifth Circuit claimed in June Medical Services that it was free ignore this hint because, when the Supreme Court stayed Whole Woman’s Health, it did so in a brief order without explaining its reasoning. “No guidance can be gleaned from the Supreme Court’s vacating portions of the stay without explanation,” according to the lower court, “as we cannot discern the underlying reasoning from the one-paragraph order.”
Which brings us back to the 14 significant words in the Supreme Court’s most recent order. “Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole,” that order begins, the Fifth Circuit’s order reinstating the Louisiana law is vacated.
These 14 words are a subtle spanking, but they are a spanking nonetheless. They directly contradict the Fifth Circuit’s claim that it can ignore the Supreme Court’s previous stay orders if the lower court “cannot discern the underlying reasoning” behind those orders. And they rebut the Fifth Circuit’s logic on its own terms. Why shouldn’t lower courts allow Texas-style abortion restrictions to go into effect in the future? Because halting these laws is “consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.”
So there you have it. ThinkProgress admits that one can over-read meaning into these situations, but coming off the way oral arguments for the HB2 case went, it’s hard not to feel a teeny bit of optimism. Not too much – let’s not get irrationally exuberant here – but a little. RH Reality Check and Slate have more.