Saying the Supreme Court needs time to ponder the issue, Justice Samuel A. Alito, Jr., on Friday evening delayed for six days a Louisiana law regulating abortion doctors – a law closely similar to one that the Court struck down by a narrow vote three years ago.
At issue is a 2014 law that requires any doctor performing abortions in the state to have professional privileges to admit patients to a hospital within 30 miles of the clinic. The law has never gone into effect because of court challenges, but it was due to become effective on Monday. The Supreme Court’s reaction to the measure is being closely watched as the first abortion-related controversy to be handled with two new conservative Justices on the bench.
In a one-page order, Justice Alito stressed that the postponement of the law “does not reflect any views” on the validity of the law, which was upheld by a deeply divided U.S. Court of Appeals for the Fifth Circuit. The order noted that the written briefs on the question of delaying the law had just been completed earlier Friday, “and the Justices need time to review these filings.”
The delay of the law’s effective date will be until next Thursday, giving the Justices almost a week to study what to do next.
The Fifth Circuit’s active bench of 15 judges split 9-to-6 in refusing to review the law after a three-judge panel had divided 2-to-1 in upholding the law against a challenge by an abortion clinic and two doctors. A federal trial judge in 2017 had barred enforcement of the law, relying on the Supreme Court’s nullification of a nearly identical Texas law in 2016.
The two Judges in the Circuit Court majority conceded that they were bound by the Supreme Court’s 2016 decision but found that the Justices’ ruling was based on different circumstances. In Louisiana, the panel majority said, the facts were different about the reason behind the privileges requirement, and that the impact was different for Louisiana women seeking abortions. Both of those points were strenuously contested by the six judges who wanted the full Circuit Court to review the law.
Louisiana now has only three abortion clinics across the state, and two of them do not have doctors who have been able to obtain admitting privileges at nearby hospitals, so the clinics probably would have to close if the law went into effect. The one doctor in the state who now has such privileges would not be able to handle alone all abortions at the annual rate of 10,000, the challengers contended.
Justice Alito had the authority to deny on his own the delay request, but it will take the votes of five of the Justices to postpone the lower court’s decision and delay enforcement of the law. Even if Alito were inclined to deny any delay, he chose to share that issue with his eight colleagues. He did have the authority, on his own, to issue the temporary delay that he did.
The six-day delay might suggest that, because the Court is now in a mid-winter recess, it would be difficult to get the Justices to act as a group on the Louisiana case. But it also might imply that the Justices may well wind up split on the question of postponement, and they will need time to write out their differing views.
The adoption by several state legislatures of admitting privileges requirements for doctors who perform abortions came amid a wave in recent years of enactment of a variety of laws designed to reduce the number of abortions in those states. The sponsors of the Louisiana law, for example, said publicly that the requirement was part of the overall effort against abortions in the state.
When the Supreme Court had before it for the first time, three years ago, the question of state power to order abortion doctors to have admitting privileges at nearby hospitals, it split 5-to-4 in a preliminary order blocking the Texas version pending review. (Because it had taken that action, the Court also blocked the enforcement of the Louisiana law, which was then before the Court in an earlier stage of that case.)
In the Texas order, the four dissenting Justices who would have allowed the Texas law to go into effect included three members who are now still serving: Chief Justice John G. Roberts, Jr., and Justices Alito and Clarence Thomas. The fourth Justice was Antonin Scalia, who has since died.
In the majority supporting that delay were four Justices who are still serving -- Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. The fifth vote in the majority was cast by Justice Anthony M. Kennedy, who retired last summer.
When the Court issued its final ruling in June 2016 striking down the Texas law, after Justice Scalia’s death, the Justices voted the same way that they had on the initial delay question: 5-to-3.
The majority decided that the admitting privileges requirement would have no medical benefit for women served by abortion clinics and would be a substantial obstacle to women throughout the state seeking abortions. The Texas law had already resulted in the closing of several clinics.
Since that decision was issued, Scalia has been succeeded by Justice Neil M. Gorsuch and Justice Kennedy has been replaced by Justice Brett M. Kavanaugh. Both Gorsuch and Kavanaugh had reputations as conservatives when they served on lower courts, and both have given indications of the same ideological preferences since becoming Justices. Both were placed on the Court as nominees of President Trump.
In recent years, while Justice Kennedy was still serving on the Court, the Justices had repeatedly refused to review attempts by abortion opponents to persuade the Justices to allow more state laws restricting those procedures.
If the Louisiana law is allowed to go into effect, or if it is blocked temporarily while the Court reviews it but is then upheld, it would be taken as a strong indication that abortion opponents were likely to have a majority more sympathetic to their cause. That is why both sides in the overall abortion controversy – which began 46 years ago with Roe v. Wade – have treated the case on the Louisiana privileges law as a major test of where the current Court is likely to go on the issue.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
