To explain, the conservative United States Court of Appeals for the Fifth Circuit has handed down a series of decisions that appear calculated to dismantle nearly all of Roe v. Wade within the three states (Louisiana, Mississippi and Texas) overseen by that court. In 2015, for example, the Fifth Circuit’s decision in Whole Woman’s Health v. Cole gave states sweeping power to restrict abortion, so long as the restriction is dressed up as a health regulation. Among other things, this opinion blessed a provision of Texas law requiring abortion clinics to undergo expensive renovations in order to comply with regulations governing “ambulatory surgical centers,” even if the clinic does not actually perform any surgeries. Many Texas abortion clinics only offer medication abortions, which are induced by pills the woman takes orally.
An appeal of this Whole Woman’s Health decision is currently pending before the justices, and a majority of the Court appeared skeptical of the Fifth Circuit’s decision at oral arguments last Wednesday.
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.”
To be clear, it is normally a dangerous practice to read too much into a one-paragraph order like the one the Supreme Court handed down Friday. This order provides only a limited window into the Court’s thinking, and it deals only with a preliminary issue facing the Fifth Circuit in June Medical Services. The conservative appeals court will have another opportunity to hear this case, and that will give it another opportunity to make mischief for abortion providers.
But the Supreme Court is now signalling very loudly that a majority of the Court is not pleased with the Fifth Circuit’s efforts to pare Roe v. Wade down to near nothingness. If the lower court’s judges do decide to make more mischief, they will probably wind up on the receiving end of yet another judicial spanking.
Author: Ian Millhiser