Preserving the Status Quo in Texas at the Supreme Court

November 20th, 2013

The Supreme Court denied a stay in a 5th Circuit opinion, which allowed a new abortion law to go into effect in Texas. Justice Scalia, joined by Justices Thomas and Alito, concurred in denying the stay. Justice Breyer dissented from the denial of the stay, joined by Justices Ginsburg, Sotomayor, and Kagan.

Interestingly, the Scalia opinion does not discuss the facts at all, and makes no reference to the relevant constitutional inquiry. Fittingly, the Scalia opinion does not mention the word abortion till the very last paragraph, in a snide swipe at the dissenters special standard for abortion.

But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards— which do not include a special “status quo” standard for laws affecting abortion. The Court is correct to deny the application.

In contrast, the Breyer opinion delves into the facts of the case, and cites Casey and Carhart. Breyer’s opinion also focuses heavily on maintaining the status quo–that is, how the law existed before the new abortion regulation came into effect.

 First, under the status quo that existed in Texas prior to the enactment of the admitting privileges requirement, women across the State of Texas who needed abortions had a certain level of access to clinics that would provide them. If allowed to stand, the District Court’s injunction would maintain that status quo pending the decision of this case by the Court of Appeals. Second, the Fifth Circuit’s stay seriously disrupts that status quo.

I would maintain the status quo while the lower courts consider this difficult, sensitive, and controversial legal matter. Thus, I would vacate the stay, and I dissent from the

Court’s refusal to do so.


But what status quo are we talking about? The status quo before the enactment of the law, or the status quo after the new last was passed?

Scalia’s opinion differed concerning the status quo, noting that enforcing the law is the status quo. That is, those who voted for the law, and changed the regulations concerning admission privileges, changed the status quo, and it was the district court who enjoined the new law that disrupted the status quo. The Court of Appeals who stayed the district court opinion enjoining the law was maintaining the status quo. (Is your head spinning yet?)

The Court of Appeals concluded that the fourth factor also favored the stay, reasoning that the State’s interest in enforcing a valid law merges with the public interest. See Nken, supra, at 435. The dissent declines to criticize that reasoning, though we are presumably meant to infer from its disapproving comments about the stay’s “seriou[s] disrupt[ion of the] status quo,” post, at 3, that the dissent believes preservation of the status quo—in which the law at issue is not enforced—is in the public interest. Many citizens of Texas, whose elected representatives voted for the law, surely feel otherwise. But their views go un- acknowledged by the dissent, which again fails to cite any “‘accepted standar[d]’” requiring a court to delay enforcement of a state law that the court has determined is likely constitutional on the ground that the law threat- ens disruption of the status quo.

Rick Hasen, who is also a remedies expert, opines:

t one time in Remedies practice, when it came to temporary injunctions or stays, courts really focused on the status quo.  Justice Breyer in his dissent today focuses almost exclusively on how the Fifth Circuit is allowing the status quo to change while the legal question is close. Justice Scalia will have none of it . . . Justice Scalia’s rejection of the status quo represents yet another change in injunction practice before the Supreme Court, part of a broader change I plan to write about soon in which injunctions are harder for plaintiffs to get and easier for defendants to get blocked or overturned.

This case will make its way back to One First Street before long.