Hmmm: Roberts joins liberal wing to suspend Louisiana abortion law

Say, weren’t 5-4 decisions supposed to go the other way now? Chief Justice John Roberts sided with the four liberals on the Supreme Court to issue a stay on a tough new abortion law in Louisiana. It’s temporary, but it’s curious:

A divided Supreme Court stopped Louisiana from enforcing new regulations on abortion clinics in a test of the conservative court’s views on abortion rights.

The justices said by a 5-4 vote late Thursday that they will not allow the state to put into effect a law that requires abortion providers to have admitting privileges at nearby hospitals.

Chief Justice John G. Roberts Jr. joined the court’s four liberals in putting a hold on the law, pending a full review of the case.

The new law requires doctors at abortion clinics to have admitting privileges at a nearby hospital, ostensibly to ensure that they can move their patients quickly when things go badly. Abortion-rights advocates argue that this creates an undue burden on the constitutional right to an abortion. Louisiana only has three clinics which offer abortions, which employ four doctors between them, and only one has admitting privileges as required by the new law. The plaintiffs in June Medical Services v Gee argued that the law would force two of the clinics to close, creating that undue burden for women in the state seeking an abortion.

At first a district court agreed, using the Supreme Court’s 5-3 decision in Whole Woman’s Health which struck down a similar Texas law in 2016. The appellate court disagreed, however, ruling that a built-in delay in enforcement of the law was sufficient for the doctors to get admitting privileges, and rejected an application for an en banc rehearing.

And here comes the curious part. John Roberts dissented from the Whole Woman’s Health decision in June 2016, which went 5-3 because of the death of Antonin Scalia. Roberts voted against striking down the tougher law in Texas over the “undue burden” issue less than three years ago. Perhaps Roberts felt the need to defend stare decisis? Or was he less concerned because of the temporary nature of the stay?

In a written dissent, Justice Brett Kavanaugh writes that the entire situation wasn’t ripe for the court’s scrutiny. Even this temporary stay will take longer to unwind than the 45-day enforcement delay, which would have settled whether there’s even an issue to be adjudicated, let alone the fact that the Fifth Circuit’s factual findings argued against intervention at all:

Before us, the case largely turns on the intensely factual question whether the three doctors—Doe 2, Doe 5, and Doe 6—can obtain admitting privileges. If we denied the stay, 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. That is because the State’s regulation provides that there will be a 45-day regulatory transition period before the new law is applied. The State represents, moreover, that Louisiana will not “move aggressively to enforce the challenged law” during the transition period, Objection to Emergency Application for Stay 2, and further represents that abortion providers will not “immediately be forced to cease operations,” id., at 25. Louisiana’s regulation together with its express representations to this Court establish that even without admitting privileges, these three doctors (Doe 2, Doe 5, and Doe 6) could lawfully continue to perform abortions at the clinics during the 45-day transition period. Furthermore, during the 45-day transition period, both the doctors and the relevant hospitals could act expeditiously and in good faith to reach a definitive conclusion about whether those three doctors can obtain admitting privileges.

If the doctors, after good-faith efforts during the 45-day period, cannot obtain admitting privileges, then the Fifth Circuit’s factual predictions, which were made in the context of a pre-enforcement facial challenge, could turn out to be inaccurate as applied. And if that turns out to be the case, then even the State acknowledges that the law as applied might be deemed to impose an undue burden for purposes of Whole Woman’s Health. In that circumstance, the plaintiffs could file an as-applied complaint or motion for preliminary injunction in the District Court, and the District Court could consider under Whole Woman’s Health whether to enter a preliminary or permanent injunction.

On the other hand, if the doctors can obtain necessary admitting privileges during the 45-day transition period, then the doctors could continue performing abortions at the three clinics both during and after the 45-day transition period, as envisioned and predicted by the Fifth Circuit. And in that circumstance, the Louisiana law as applied would not impose an undue burden under Whole Woman’s Health.

In order to resolve the factual uncertainties presented in the stay application about the three doctors’ ability to obtain admitting privileges, I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period. The Court adopts an approach—granting the stay and presumably then granting certiorari for plenary review next Term of the plaintiffs’ pre-enforcement facial challenge—that will take far longer and be no more beneficial than the approach suggested here. I respectfully dissent from the Court’s stay order.

The effect of Roberts’ vote is to freeze the situation in place and require an eventual Supreme Court ruling. The three doctors won’t apply for admitting privileges; why would they when it would moot their chances of getting the struck down entirely? The state’s regulatory efforts will remain in limbo for the foreseeable future. Instead of waiting 45 days to see whether the law created any burden at all, we might wait for years … and then maybe have to do the 45-day waiting period all over again. It’s a big waste of time and an unnecessary and premature intrusion into the legislative sovereignty of Louisiana.

The Machiavellian take on this could have Roberts positioning the case to force the whole court to revisit Whole Woman’s Health in its current composition. That may also be the wide-eyed optimist take on it, alas. If only Louisiana could call it a tax …