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SCOTUS to review request to reinstate injunction against HB2

It’s never a good thing to have one’s fate in Justice Scalia’s hands, but that’s where we are.

State attorneys filed a response on Tuesday to abortion providers’ request for the U.S. Supreme Court to intervene in the ongoing legal battle over the constitutionality of Texas’ new regulations on the procedure.

Abortion providers on Monday asked the U.S. Supreme Court to reinstate a lower federal court’s injunction that blocked Texas from implementing strict new abortion rules, which the 5th Circuit Court of Appeals lifted. Justice Antonin Scalia, who is considering the plaintiffs’ request, ordered the state to respond by Nov. 12.

“The applicants focus almost exclusively on their claim that ‘approximately 20,000 Texas women’ will be unable to obtain abortions each year on account of HB2’s hospital-admitting privileges requirement,” the Texas attorney general’s office responded on Tuesday. “But a litigant does not establish a factual proposition by asserting it to be so.”

The state’s attorneys debate evidence presented by the plaintiffs that 13 abortion facilities that do not have a physician with nearby hospital admitting privileges would be forced to stop performing abortion, leading an estimated 20,000 women to lose access to abortion services. The state argues there’s not enough evidence that remaining abortion providers could not take on those additional patients.

The 5th Circuit plans to hold a hearing to fully consider the case in January. The state’s attorneys argued in their response that it’s “hard to imagine” the Supreme Court would reconsider the case after the 5th Circuit, unless the 5th Circuit’s ruling conflicts with the 7th Circuit’s ruling on a similar hospital admitting privileges requirement in Wisconsin. “The applicants do not allege that this scenario is ‘likely,’ and it is highly unlikely, especially when the Wisconsin and Texas cases are likely to turn on features unique to each state’s abortion market,” state attorneys note in their response.

The plaintiffs anticipate that Scalia will issue an expedited decision shortly after receiving the state’s response. He could also refer the case to the entire U.S. Supreme Court. If Scalia does not reverse the 5th Circuit’s decision or refer the case to the whole court, the plaintiffs may ask another Supreme Court justice to consider the case. If the case is not considered by the U.S. Supreme Court, it will still proceed in the 5th Circuit.

See here and here for previous updates, and click the Trib link above to see copies of the filings. I have no idea what to expect here, but as it happens on Tuesday the Supreme Court also refused to hear an appeal from the state of Oklahoma asking for a review of a state court ruling that struck down their law requiring an ultrasound before an abortion. As I said the last time, that only required SCOTUS to decline to act, where here we need them to take action. But you find your reasons to be optimistic where you can.

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