The Texas Tribune reports that the Federal District Court opinion ruled unconstitutional on Monday has been stayed upon appeal by the Federal Appeals Court (5th Circuit). A three judge panel made up of Judges Priscilla Owens, Jennifer Elrod and Catharina Haynes (all appointees of George W. Bush) unanimously decided that the Court will hear arguments on the constitutionality of the bill in January. Until that time, however, a stay would be put on the District Court’s opinion, meaning those pertinent parts of HB2 would go into effect.
In granting the stay, the panel concluded that the provision fully overturned by the District Court –requiring abortion doctors to have admitting privileges at a nearby hospital– had a good chance of being reinstated on the merits of its constitutionality by the Appeals Court. In fact, the entire order read like a final judgment upholding the constitutionality of the law.
From here, opponents of the law are seeking two separate resolutions. First, they are hoping to see the law struck down as unconstitutional. Second, they are trying to see that, in mean time, the law does not go into effect. The paths for these two resolutions diverge a little bit at this point.
The 5th Circuit panel will be hearing the case in January, and most likely offering up an opinion somewhere around March. That much is set in stone already. The much more immediate concern for opponents is seeing that the law’s enforcement becomes enjoined once again. In that case, the panel’s stay decision may be appealed en banc, which means every Judge on the Appeals Court will sit as a committee of the whole to hear the merits of a stay.
Of the 15 members of the Court, 10 were appointed by Republican presidents whereas only 5 were appointed by Democrats. It should be 10-7 (there are two vacancies), but the potent mix of Obama being the laziest President we’ve ever had on the judicial question and Republican extreme recalcitrance has allowed most seats in Obama’s presidency to remain vacant.
All that aside, an en banc review probably would not help the opponents of the law. At that point, the Supreme Court would be the final arbiter of whether or not to grant a stay. Like the final decision itself, it would all come down to Justice Anthony Kennedy, the swing vote.Of course, we must add a layer of incompetence to the equation every time Texas Democrats are involved; though I have faith in Planned Parenthood to do the right thing. There is a very real chance that the Supreme Court will never hear an appeal of a stay ruling because the plaintiffs do not appeal.
Regarding final judgments, if an en banc review is waived, this could be appealed to the Supreme Court after the Appeals Court decision (in March?), meaning that the High Court would hear arguments anywhere from October 2014 to March 2015 and offer up a decision in June of 2015.
As the Texas Tribune reports today, that could be very problematic. 9 more abortion clinics shuttered today, with this news, including every clinic in Western Texas as well as the Rio Grande Valley. As the Tribune notes:
“…the closest abortion facility to the Rio Grande Valley is now in Corpus Christi, which is more than 100 miles away from McAllen and Harlingen”
“…the closest Texas abortion facilities to El Paso are in San Antonio and Dallas, which are more than 500 miles away. With abortion facilities in Midland and San Angelo recently shuttering, and with the Planned Parenthood clinic in Lubbock discontinuing abortion services, there are vast stretches of West Texas and the Panhandle without a nearby abortion provider.”