Constitution Daily

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Abortion rights safe in Louisiana for now

February 8, 2019 by Lyle Denniston


Over the dissents of four Justices, the Supreme Court on Thursday night temporarily barred the state of Louisiana from enforcing a law that has the potential for making abortion unavailable to many and perhaps most women in the state. The vote was not a final ruling that the law is unconstitutional, but only a temporary halt until the case comes up for a full review, presumably at the Court’s next term, which starts in October.

Although the Court now has a majority of five conservative Justices, one of them, Chief Justice John G. Roberts, Jr., voted with the Court’s four more liberal Justices to put the law on hold temporarily. That postponement required five votes. The vote by Roberts was something of a surprise, since he was one of the dissenters three years ago when the Court struck down a nearly identical state law from Texas.

Roberts may have been influenced by the claim by lower court judges who had dissented in the Louisiana case, arguing that the law had been upheld by their colleagues in defiance of the precedent that the Supreme Court had set in 2016 in ruling the Texas law unconstitutional.


Joining the Chief Justice in preventing enforcement of the Louisiana law for at least several months were Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They did not provide reasons, but presumably, those four were sympathetic to the challengers’ claim that the law if allowed to go into effect, would have forced the shutdown of two of the three existing abortion clinics, and made the fourth unable to handle the yearly caseload of about 10,000 abortions in the state.

The four Justices who would have allowed the state to enforce the law on its own timetable were: Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Clarence Thomas.

Only Justice Kavanaugh explained his vote, arguing in a separate three-page opinion that the Court should wait to act until a 45-day transition period had elapsed before enforcement was to begin, to see if doctors who perform abortions at the state’s three clinics could in the meantime satisfy the law’s requirement. If not, Kavanaugh wrote, the challengers could return to the Court to ask that the law be put on hold while reviewed by the Justices.

The Louisiana law, like the one in Texas ruled unconstitutional three years ago, required any doctor performing an abortion in the state to have professional privileges to admit patients to a hospital within 30 miles of the abortion clinic. Supporters of the law conceded that the law was part of a continuing effort to prevent abortions in the state. Abortion rights groups contended that such laws have no health benefits and are designed only to make it harder for many women to obtain abortions.

The Louisiana case has been watched closely by both sides in the nearly half-century-old constitutional conflict over abortion, to see whether the arrival of new conservative Justices on the Court would change the dynamic on the issue. Further

word on that may have to await the Justices’ reaction to a formal appeal that is due to be filed challenging the law’s validity.

One of the factors that the Justices consider when they are asked to block a law is whether the challenger is likely to win the case after the measure is subjected to full review. While Thursday’s order did not provide a definite answer to that ultimate question, it was at least a sign that the Court is likely to grant review of the challenge, as well as a temporarily encouraging sign for abortion rights advocates.

One of the three abortion clinics in the state and two doctors who perform abortions are the challengers. Their coming appeal will contest a federal appeals court decision that upheld the law on a 2-to-1 split.

A key issue before the Justices will be whether the majority of that appeals court — the U.S. Court of Appeals for the Fifth Circuit — failed to follow the legal standard that the Supreme Court used in ruling against the Texas law on hospital privileges for abortion doctors. When the full 15-judge bench of the Fifth Circuit Court refused to reconsider the validity of the Louisiana law, six of the judges dissented, arguing that the two-judge panel majority that had upheld the law failed to follow the Supreme Court’s binding precedent on such laws.

The two judges who voted in favor of the law argued that the facts were different in Louisiana from those at issue in the Texas case and that the Louisiana law would have a lesser impact on women seeking abortions than the Supreme Court had found regarding the Texas law.

The Court’s action marked the first time that Justice Kavanaugh, the newest member of the Court, had taken part in a case before the Court on abortion rights. His conservative views on abortion, said to have been shown when he was a lower court judge, were a major factor in opposition to his nomination to the Court last year by President Trump.

In his separate opinion Thursday night in the Louisiana case, Kavanaugh suggested that three doctors at abortion clinics who do not now have admitting privileges at nearby hospitals should make new efforts to obtain them. If they are unable to do so, he said, it may be that the law would have a significant burden on women’s abortion rights by limiting their access to clinics legally able to perform the procedure.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011.


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