Texas SCOTUS Cases Still Pending: Abortion, Affirmative Action, Executive Amnesty

WASHINGTON, D.C. — The United States Supreme Court issued three opinions today but left three important cases arising out of Texas pending. The nation’s highest court has not issued a decision on these cases from Texas involving abortion, affirmative action, or the state’s challenge to the federal government’s executive amnesty order.

The Court still has left to issue an opinion in the following Texas cases:

1. ABORTION:  Whole Woman’s Health et al. v. Cole (now Hellerstedt), Comm’r, Texas DHS, et al (No. 15-274)

Oral argument in the case was held on March 2 and involves a challlenge to provisions of Texas House Bill 2 (HB 2). The death of conservative, pro-life Justice Antonin Scalia will have an impact on this lawsuit claiming that this Texas law unconstitutionally limits access to abortions in the state.

The issues before the U.S. Supreme Court pertain to provisions that Texas lawmakers say are designed to improve the quality of care for women and improve the sanitary conditions of surgical centers used to provide women’s health services.

One of the provisions being challenged requires that abortion facilities comply with the standards already in place for ambulatory surgical centers. A second provision requires practitioners who perform abortions at the clinics to have admitting privileges at a hospital within thirty miles of the facility.

Medical experts testified that the requirements are reasonable and effective measures intended to improve the standard of care and safety for women undergoing abortion procedures. Pro-abortion groups call the legislation in Texas “sham laws” and complain they “are shutting clinics down and placing countless women at risk of serious harm,” as reported by Breitbart News.

The questions before the U.S. Supreme Court include:

• Does a court err by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health?; and
• Did the Fifth Circuit err in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health or any other valid interest?

As reported by Breitbart Texas, Texas Attorney General Ken Paxton has said, “The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women. The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities. The advancement of the abortion industry’s bottom line shouldn’t take precedent over women’s health, and we look forward to demonstrating the validity of these important health and safety requirements in Court.”

Now that Justice Scalia has died, the U.S. Supreme Court is evenly divided and there is a serious question as to whether the Court will uphold the Texas law. If the high court splits 4-4 on this decision, the opinion of the U.S. Court of Appeals for the Fifth Circuit upholding the Texas law will remain. The Fifth Circuit upheld in June 2015 that the restrictions on abortion clinic standards passed in HB 2 by the 2013 Texas legislature could stand (although it modified on June 19 its opinion as it related to an McAllen abortion facility).

If the decision of the Fifth Circuit stands because there is an even split on the U.S. Supreme Court, States within the Fifth Circuit’s jurisdiction, Texas, Louisiana, and Mississippi, can likely continue to affect abortion issues until a new U.S. Supreme Court justice is confirmed.

2. AFFIRMATIVE ACTION:  Fisher v. University of Texas, et al. (No. 14-981)

This affirmative action case was argued at the U.S. Supreme Court in December of 2015. It is returning to the nation’s highest court after two trips to the U.S. Court of Appeals for the Fifth Circuit. Abigail Noel Fisher has been fighting against racial preferences in college admissions at the University of Texas at Austin since she first filed a lawsuit in 2008.

As reported by Breitbart Texas previously, the question that will be answered by the Supreme Court is whether the Fifth Circuit’s re-endorsement of UT Austin’s use of racial preferences in undergraduate admissions can be upheld under the Supreme Court’s decisions (including the 2013 Supreme Court’s decision in Fisher v. UT) when interpreting the Equal Protection Clause of the Fourteenth Amendment.

Fisher was denied admission to the University of Texas when she competed as a young white woman in the general applicant pool. She did not qualify for automatic admission under the “ten percent rule” (graduating in the top ten percent of her high school class in Texas). The general applicant pool gave two racial groups preference so she brought a lawsuit urging that the University’s affirmative-action program was reverse discrimination. She argued that the program denied her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment.

Breitbart News legal analyst Ken Klukowski attended oral arguments in October of 2012 and wrote at that time that Chief Justice John Roberts said that Supreme Court precedent requires that “there has to be a logical end point to your use of race.” He asked the lawyers, “What is the logical end point? When will I know that you’ve reached a critical mass?”

Klukowski noted that in 1978, a deeply-fractured U.S. Supreme Court upheld affirmative action where government does not use quotas. In 2003, the Court again upheld a government role in race in a 5-4 decision written by Justice Sandra Day O’Connor (Grutter v. Bollinger). Again, the fact that the Court is left with eight justices after Justice Scalia’s death, may be very significant.

3.  EXECUTIVE AMNESTY:  United States v. Texas, (No. 15-674)

Texas sued the federal government over its issuance of an executive amnesty order when Texas Governor Greg Abbott was attorney general. Texas leds a coalition of 26 states. Oral argument in the case occurred on April 18 of this year. The case is important not only to the issue of immigration, but also to the scope of presidential power.

As reported by Breitbart News’ Ken Klukowski after the oral argument, justices on the Court were sharply divided on several aspects of President Barack Obama’s executive amnesty. Klukowski wrote that “it’s very likely that the 26 states challenging Obama’s program will prevail, ending the president’s gambit to grant legal status to 4.5 million illegal aliens.”

President Obama ordered the U.S. Department of Homeland Security (DHS) to cease deportation of over one third of the illegal aliens in the country. He also ordered them through DHS Secretary Jeh Johnson to grant them legal status and permits so they could work in the U.S. The administration finalized this program, called the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), in November.

There are three issues in this case, as Breitbart News previously reported:

• First, whether DAPA had to go through the public notice-and-comment period required by the Administrative Procedure Act (APA), which is the federal law that governs how federal rules and regulations are made, and would create a paper trail that the government would have to answer for in a court challenge.
• Second, even if DAPA did not have to go through notice-and-comment, whether it is still illegal under the APA because it violates a federal statute, the Immigration and Nationality Act, which is Congress’s law for determining who can enter the United States and stay in this country.
• And third, even if DAPA does not violate the APA or other federal laws, whether it violates the president’s duty under Article II of the Constitution to “take care that the laws be faithfully executed.”

Klukowski noted that almost half of the 90-minute argument was spent addressing whether the states had suffered a legally recognized injury that the Supreme Court could remedy such as to give the States the legal standing to bring the case. He wrote that the death of Justice Scalia left the outcome of the case in great doubt.

As in any opinion from the U.S. Supreme Court occurring after Scalia’s death, a 4-4 decision would leave the lower court’s decision in place. Texas and the coalition of 26 States won at the U.S. Court of Appeals for the Fifth Circuit. A split decision would leave that opinion in place and would end the federal DAPA program.

Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.