In one of the first tests of the Supreme Court’s new conservative majority’s approach to abortion rights, one justice signaled that he intends to protect the legacy of one of the most pivotal — and controversial — abortion rights cases in the high court’s history.
The justices ruled 5-4 late in the day Thursday to temporarily halt a Louisiana law that would have required abortion providers to have admitting privileges at a hospital within 30 miles of the clinics where they work. The plaintiffs in the case, a Louisiana abortion clinic and two providers, argue that the law would have left the state with just one abortion clinic. The stay came just hours before it was set to go into effect in a state where 10,000 people seek help at abortion clinics per year.
Chief Justice John Roberts joined the court’s liberal wing for the majority. Justices Neil Gorsuch and Brett Kavanaugh, both appointed by President Donald Trump, voted to let the law go into effect.
The Louisiana law was essentially identical to an abortion restriction blocked in Whole Woman’s Health v. Hellerstedt, a 2016 case where the justices ruled that Texas could not force abortion providers to procure hospital-admitting privileges. Abortion rights advocates call such restrictions “targeted regulation of abortion providers,” or “TRAP” laws. These standards, activists charge, hold clinics to medically unnecessary standards and are designed to force clinics to shut down.
Abortion providers often struggle to obtain admitting privileges, which allow doctors to admit patients to hospitals, because hospitals often don’t want to be associated with abortion and because physicians with privileges are expected to bring in money.
“What you have is a confluence of factors that make [obtaining admitting privileges] nigh impossible for a physician who provides abortions anywhere in a state — let alone within  miles of a clinic where they provide those services,” explained Nicole Huberfeld, a Boston University School of Public Health professor who studies healthcare and constitutional law.
In April 2017, a Louisiana district judge cited the Whole Woman’s Health precedent when he blocked the state’s law. But the Fifth Circuit Court of Appeals later overturned that decision, clearing the way for the law to go into effect.
The Center for Reproductive Rights, which represented the Louisiana plaintiffs, asked the Supreme Court to review the ruling. Any choice the justices made would have been a statement. By refusing to let the law go into effect, they indicated to abortion opponents that the demise of Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion nationwide, is far from assured. But if the justices had declined to act and let the law go into effect, they would have signaled that the court is ready to usher in a new, turbulent era in the fight over Roe.
If that had been the case, the court would have essentially gutted the 3-year-old precedent set by Whole Woman’s Health, legal analysts said. Suzanne Goldberg, head of Columbia Law School’s Center for Gender and Sexuality Law, said before the vote that if the court did not act to stay the law, “many will see this as a clear message that it is open season at the Supreme Court on abortion restrictions.”
While the brief announcing the stay did not include any reasoning, Kavanaugh did pen a solo dissent where he tried to push for a middle ground. The newest justice voted to let the law go into effect, he explained, because he still had questions about whether abortion providers in Louisiana could feasibly procure admitting privileges. Since the law would have folded in a “45-day transition period,” Kavanaugh proposed that providers try to secure privileges, and then find out for sure whether the law made it unconstitutionally difficult for people to get abortions.
“If we denied the stay,” he wrote, “that question could be readily and quickly answered without disturbing the status quo or causing harm to the parties or the affected women, and without this Court’s further involvement at this time.”
Since Kavanaugh ascended to the Supreme Court last fall, the majority of the justices have largely punted on cases surrounding reproductive health — perhaps because, after Kavanaugh’s deeply contentious confirmation, they fear the court has become too politicized. In December, the court decided to let stand a lower court’s decision that blocked states from cutting Planned Parenthood out of Medicaid funding.
But while Kavanaugh voted with the majority in that case, in favor of letting the decision stand, the other conservative justices Gorsuch, Samuel Alito, and Clarence Thomas all wanted to address it. As Thomas pointed out in a peeved dissent, states are split on the issue, which is typically the time for the Supreme Court to step in and clear the matter up. The optics of the case, he feared, made the justices wary of taking it on.
“So what explains the Court’s refusal to do its job here?” Thomas wrote. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”
Chief Justice Roberts has made it clear that he wants the court to stay out of the political thicket. Last year, in a rare move, Roberts rebuked Trump for making disparaging comments about the Ninth Circuit Court of Appeals. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement in November. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
This time, though, the justices won’t be able to stay above the fray. The Louisiana abortion providers will file a petition for review, which they’re expected to do in mid-April. If the case goes to oral argument, a decision on the law’s constitutionality will likely be handed down sometime next year.
Cover: The Supreme Court Justices pose for their official group portrait in the Supreme Court on November 30, 2018 in Washington, D.C. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito, Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. Credit: Kevin Dietsch / Pool via CNP | usage worldwide Photo by: Kevin Dietsch/picture-alliance/dpa/AP Images