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Why abortion is probably going back to the Supreme Court
A ruling on Texas' restrictive abortion laws all but guarantees the high court will intervene
 
Davis kicked off a battle that may wind up in the highest court in the land.
Davis kicked off a battle that may wind up in the highest court in the land. (Getty Images/Erich Shlegel)

Texas state Sen. Wendy Davis (D) may have lost the early battle on abortion rights, but it appears the war is just beginning.

Months after Gov. Rick Perry (R) called a special legislative session to pass a restrictive abortion bill that Davis had filibustered for 11 hours, a federal judge ruled on Monday that some of its provisions are unconstitutional.

A day before many of the provisions of House Bill 2 were supposed to take effect — including one that was expected to force the closure of one third of Texas' abortion clinics — District Judge Lee Yeakel blocked them.

The most significant aspect of the ruling regarded a regulation mandating that abortion doctors have admitting privileges at a nearby hospital. The bill's proponents claimed it was a way to ensure health and safety standards. However, Yeakel ruled that it "does not bear a rational relationship to the legitimate right of the State in preserving and promoting fetal life or a woman's health."

Moreover, citing the 1992 Supreme Court decision Casey v. Planned Parenthood, which ruled that a law cannot put an undue burden on a woman seeking an abortion, Yeakel concluded that the admitting privileges regulation did pose "a substantial obstacle in the path of a woman seeking an abortion."

While Mississippi passed a law with a similar restriction last year, which has also been blocked by a federal judge, that was a temporary order that will remain in effect until a trial scheduled for March 2014. Yeakel's Texas ruling is final, which "sets the groundwork for the 5th Circuit [Court of Appeals] to review the merits of the law, not just an injunction against it," writes Chris Tomlinson at the Associated Press.

And once the law enters the appellate court circuit, it's just one layer removed from the Supreme Court.

Further increasing House Bill 2's odds of being SCOTUS fodder: One of its provisions bans all abortions after 20 weeks, which "legal experts say is in conflict with Supreme Court decisions granting a right to abortion until the fetus is viable outside the womb, usually at around 24 weeks," writes Erik Eckholm at the New York Times.

While 12 states have similar restrictions, they have been blocked in three. The disagreement between different courts in different states only further suggests that the Supreme Court will step in to clarify its position. In fact, Texas "is already vowing an emergency appeal to the 5th Circuit Court of Appeals," says Wade Goodwyn at NPR.

The 5th Circuit tilts heavily conservative, currently composed of 10 Republican-appointed judges and five Democratic-appointed ones. It has been described by the Associated Press as a "corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates." If the 5th Circuit lives up to its reputation, "it's very likely that Planned Parenthood and their allies would appeal it to the U.S. Supreme Court."

Attorney General Gregg Abbott has already predicted that the case will make it to the highest court in the land. "I have no doubt that this case is going all the way up to the United States Supreme Court," Abbott told the Associated Press.

Even Yeakel recognized that he is not the final word on these controversial abortion provisions, noting that "at the end of the day these issues are going to be decided definitely not by this Court, but by either the Circuit or the Supreme Court."

Indeed, it seems the question will inevitably turn to how the Roberts court will decide the case — and whether the conservative-leaning court will continue to undo the more moderate positions taken by former Justice Sandra Day O'Connor, a swing vote who helped craft the decision in Casey.

 
Emily Shire is chief researcher for The Week magazine. She has written about pop culture, religion, and women and gender issues at publications including Slate, The Forward, and Jewcy.

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