Abortion politics in the U.S. Supreme Court

Posted by AzBlueMeanie:

A couple of weeks ago, the U.S. Supreme Court dismissed as “improvidently granted” the case of Cline  v. Oklahoma Coalition for Reproductive Justice (docket 12-1094), an appeal from the state of Oklahoma to  revive a law that restricts doctors’ use of drugs rather than surgery to perform an abortion with the medication RU-486 and others, struck down by the federal courts.

Uterus-stateAround the same time, Planned Parenthood of Texas applied for an order setting aside the Fifth Circuit Court of Appeals order permitting the Texas law requiring abortion practitioners to have admitting privilieges at a nearby hospital before they may perform abortions at a clinic or in a doctor’s office. Planned Parenthood of Greater Texas Surgical Health Services v. Abbott (13A452).

In a 5-4 decision along ideological lines, the Court declined on Tuesday to set aside the Fifth Circuit Court order. Lyle Denniston at Scotusblog.com reports, Texas abortion law left in effect:

Splitting five to four, the Supreme Court late Tuesday afternoon refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state.  The Court had been studying the issue for the past week.  The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.

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.

The specific order denying the application (13A452) was unsigned.  Both Justice Scalia’s opinion and that of the dissenters referred to the result as the action of “the Court.”

Justice Stephen G. Breyer wrote for the four dissenters, including Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  Their dissenting opinion argued that the Fifth Circuit Court order in the case “seriously disrupts” the status quo in Texas.  They said that the women who are denied access to abortion while the law is in force will suffer permanent harm. They did not give their view on whether the professional privileges law was unconstitutional, although they did say that was a “difficult question.”

The dissenters suggested that at least four members of the Court “will wish to consider” the constitutionality of the provision no matter what the court of appeals ultimately decides.

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A federal judge in Austin, District Judge Lee Yeakel, had ruled last month that the professional privileges requirement was unconstitutional, finding that it put up a “substantial obstacle” in the path of the constitutional right of women in Texas to terminate a pregnancy.   The Fifth Circuit overturned that order, and cleared the way — at least temporarily — for the law to become effective.   The Fifth Circuit is reviewing the constitutionality of the law on an expedited basis, with a hearing scheduled in January.

The Supreme Court’s split decision means that the privileges requirement will continue to limit abortions for at least the next two months, and perhaps longer.  There is no timetable for the court of appeals to act.   It seems likely that, whatever it decides, the case would return to the Supreme Court for an ultimate test of its validity.

And then we have Arizona's own Tom "banned for life by the SEC" Horne, Arizona again asks Supreme Court to look at abortion law:

For the second time in as many months, an Arizona official has asked the U.S. Supreme Court to reinstate a controversial state abortion law.

Arizona Attorney General Tom Horne on Wednesday asked the nation’s highest court to rule on a law that strips Medicaid funding from doctors and clinics that perform abortions.

House Bill 2800, which the Legislature passed and Gov. Jan Brewer signed in 2012, would have halted Medicaid reimbursements for contraceptives, cancer screenings, treatment for sexually transmitted diseases and annual women’s exams at more than 80 Arizona hospitals and clinics that also perform abortions.

In September, Maricopa County Attorney Bill Montgomery asked the Supreme Court to hear a challenge to a separate abortion-related law — one that bans most abortions after 20 weeks of pregnancy.

The 9th U.S. Circuit Court of Appeals has ruled both abortion laws are unconstitutional. Neither is currently in effect.

It is already a violation of state law to spend state or federal money on elective abortions, and that prohibition was not disputed in the lawsuit challenging HB 2800. In its ruling, the appeals court said the defunding law violates the federal law governing Medicaid because it limits patients’ options when choosing a doctor.

“The free-choice-of-provider provision unambiguously requires that states participating in the Medicaid program allow covered patients to choose among the family-planning medical practitioners they could use were they paying out of their own pockets,” the opinion states.

The court dismissed the state’s argument that Arizona has the power to determine which doctors are qualified to serve Medicaid patients, saying that would open the door to a free-for-all in which states could ban doctors for arbitrary reasons.

Since 1991, Planned Parenthood has served Medicaid patients through the state’s Arizona Health Care Cost Containment System. According to Planned Parenthood, it sees about 3,000 AHCCCS patients a year and receives about $350,000 in reimbursements.

Planned Parenthood of Arizona has fought the law.

“This litigation has already cost the state of Arizona approximately $279,000 in legal fees alone, which is what it would cost for Arizona to provide clinical breast exams or cervical-cancer screenings to thousands of AHCCCS patients,” said President and CEO Bryan Howard. “It will cost the state even more to litigate its petition to the Supreme Court.”

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There is no guarantee the high court will hear the case. The court historically has been interested in cases in which multiple appellate courts have issued conflicting opinions. On this issue, the lower courts have mostly been in agreement.

The state of Arizona, pissing away your tax dollars on attorneys fees and court costs in pursuit of a right-wing religious zealot agenda to get a case before the U.S. Supreme Court to overturn Roe v. Wade, and impose their dystopic totalitarian Christian theocracy envisioned in The Handmaid's Tale.

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