With Chief Justice John Roberts joining the four liberal justices to provide the decisive fifth vote, the U.S. Supreme Court in a 5-4 Thursday ruling granted a stay against implementation of a Louisiana law requiring doctors performing abortions to have admitting privileges at a hospital within 30 miles.
But the court didn’t rule on the substance of the law in the case of June Medical Center v. Gee. It only blocked its implementation while abortion rights activists have a chance to file an appeal against the 2-1 decision last September of a panel of the Fifth Circuit Court of Appeals to let the law go into effect. The decision gives us the first inkling of how Associate Justice Brett Kavanaugh is likely to rule in abortion cases compared with the impression he tried to give in Senate confirmation hearings that he considers Roe v. Wade settled law.
Rights activists say the 4-year-old Louisiana law would make getting an abortion much harder in the state, something that defies Supreme Court precedent set in 1992 with Planned Parenthood of Southeastern Pennsylvania v. Casey and reinforced in 2016 by its ruling in Whole Woman’s Health v. Hellerstedt. The latter struck down a Texas law requiring hospital admitting privileges for abortion providers based on the ruling in Casey that women must not face an “undue burden” when seeking abortions. As in so many such cases, the activists in the Louisiana case are represented by the tireless Center for Reproductive Rights. A press release posted on the center’s website late Thursday states:
Although the Court’s decision to keep the law from going into effect is good news, we must be clear: the situation in Louisiana is dire, and this stay does not change that. Since 2001, the number of abortion clinics in the state has fallen from 11 to three. If this law were to go into effect, as Judge James Dennis noted in his dissent from the Fifth Circuit’s decision, a vast majority of women seeking an abortion in Louisiana “would be unable to obtain one, clearly constituting an undue burden.”.
The three clinics left in Louisiana will stay open while we ask the Supreme Court to hear our case. The Court’s decision should be straightforward—we’re asking it to simply uphold the constitution’s protections that allow women to make their own health decisions and control their own fate.
One would think that the permanent crushing of the Louisiana law would be a slam dunk given the seminal Hellerstedt ruling. A federal district judge had certainly agreed, ruling that Louisiana’s law is unconstitutional because it would “cripple women’s ability to have an abortion.” But the Fifth Circuit majority argued that, unlike the Texas law, which forced well over half the state’s 40 abortion clinics to close, the Louisiana law would not have such a draconian impact.
The dissent by U.S. Circuit Judge Patrick Higginbotham argued to the contrary: “Over 5,000 women seeking abortions in Louisiana will be unable to obtain one within the state and no woman seeking to exercise her right to decide to seek an abortion after 16 weeks will be able to do so in Louisiana.” Compare that 5,000 figure with the 8,706 abortions performed in the state in 2017, the most recent available statistics.
Strikingly, in another case, in 2014, a three-judge panel of the Fifth Circuit ruled 2-1 in a narrowly tailored decision that the admitting privileges provision of a 2012 Mississippi law would have forced the closure of the state’s last remaining clinic providing abortions. The majority rejected the argument made by Mississippi authorities that this would present no problem because women could always obtain the procedure by driving to neighboring states, such as Tennessee and … Louisiana.
After Hellerstedt was decided, Mississippi authorities stopped trying to appeal the Fifth Circuit’s ruling.
While Kavanaugh joined the three hardcore conservatives in opposing the court majority in the Louisiana case—doing what many critics said he would when he was confirmed to replace Justice Anthony Kennedy last summer—the narrowness of his dissent from the majority isn’t a definite sign he would join them in any case directly confronting Roe. But it certainly doesn’t look good.
Amy Howe at SCOTUSBlog writes:
The central question in the case, he reasoned, is whether the admitting-privileges requirement imposes an “undue burden” on a woman’s right to obtain an abortion, which in turn hinges largely on whether three doctors who perform abortions at the state’s clinics can obtain admitting privileges – a question on which the lower courts reached different conclusions. Therefore, Kavanaugh explained, he would deny the providers’ request to bar the state from enforcing the law so that the three doctors and local hospitals could resolve the admitting-privileges question once and for all.
If the doctors cannot obtain admitting privileges, Kavanaugh stressed, they can return to court. But if they can, and they can continue to perform abortions, he suggested, the law would not impose an undue burden. By contrast, Kavanaugh emphasized, the Supreme Court’s approach—blocking the law and presumably reviewing the case next term—“will take far longer and be no more beneficial than the approach suggested here.”
Howe speculates that review—expected this fall or early next year—will produce a ruling by June 2020.
As suggested by the very name of the Louisiana law—the Unsafe Abortion Protection Act—forced-birthers argue in legislatures and courts that they are just trying to make clinics and clinic procedures safer for women, and what righteous person could be against that? But out of court, they are candid about their real goal: shutting down as many clinics as they can. These crusaders have been at work undermining women's reproductive rights since five minutes after Roe v. Wade was ruled on 46 years ago. We know what the ever-growing number of restrictions means: dead women, maimed women, sterilized women, women with no choice but to carry their pregnancies to term. Yet some people who should know better still think the "war on women" is hyperventilation.