Can states require that abortionists establish admitting privileges with nearby hospitals in order to operate their clinics? The Supreme Court granted cert this morning in a dispute over a Louisiana law, making this the first abortion test case for the court since Brett Kavanaugh joined it last year.
RESOLVED: The summer of 2020 shall be considered lit.
The Supreme Court said Friday that it will decide the fate of a Louisiana law that women’s groups said would leave only a single doctor to perform abortions in the entire state.
The measure would require any doctor offering abortion services to have admitting privileges at a hospital within 30 miles. It was opposed by two Louisiana doctors and a medical clinic.
It’s the first major abortion case the high court will face since Trump-appointed Justice Brett Kavanaugh succeeded Anthony Kennedy, who voted to uphold Roe v. Wade. The court will hear arguments in the case early next with year, likely making a decision by late June.
Is this a second bite at a 2016 apple? The Supreme Court struck down a nearly identical Texas law that year in the Whole Woman’s Health decision, but that was a court that included Anthony Kennedy. Politico frames the cert decision as an opportunity for the Kavanaugh-inclusive court to rethink its previous work on abortion restrictions, perhaps even all the way up to Roe:
The Supreme Court on Friday announced it will review Louisiana abortion restrictions that could leave the state with just one abortion provider, in a case that gives the high court’s new conservative majority a chance to redefine abortion rights.
The Louisiana law would require doctors who perform abortions to have admitting privileges to a nearby hospital. It is similar to a Texas law the Supreme Court struck down in 2016, finding it posed an undue burden on a woman’s constitutional right to access an abortion.
Lit, I tell you, liiiiiit! Well, except for a couple of small details. In the first place, the cert granted resulted from an appeal filed by abortion advocates, not pro-life organizations or the state of Louisiana. That’s because the latter won a surprising decision at the appellate level that contradicted the 2016 Supreme Court precedent:
To the surprise of abortion-rights lawyers, a conservative appeals court in New Orleans upheld the Louisiana law last year and said it would not put an undue burden on many women. It did so by asserting that doctors probably could obtain admitting privileges if they persisted.
Second, this Supreme Court has already intervened in the case to temporarily block enforcement of the law. That took place in February on a 5-4 vote even without Kennedy, with you-know-who occupying the center square:
Lawyers for the Louisiana clinics filed an emergency appeal at the Supreme Court. And in February, the justices issued a temporary order on a 5-4 vote blocking the Louisiana law from taking effect. Chief Justice John G. Roberts cast his vote with four liberal justices, while the four conservatives dissented.
Throughout his career, Roberts has regularly opposed abortion rights but has not said whether he would overturn Roe vs. Wade if given the opportunity.
The TRO practically guaranteed that cert would be granted, as did the appellate court’s decision to ignore or defy the recent precedent. As I noted in February, though, the decision to grant the TRO was curious in one respect, which is that Roberts was part of the dissent in Whole Woman’s Health. Roberts could have been playing a game of eight-dimensional chess, at least theoretically, by voting with the four liberal jurists to enjoin Louisiana and force the court to review the law rather than waiting for further “ripeness,” as the dissent on the TRO by Kavanaugh suggested.
That theory only makes sense, however, if one sees Roberts as a stalwart conservative on the court determined to leave his ideological stamp on it, especially in the middle of presidential elections. In other words … lotsa luck on that one. The safer bet is that Roberts will defend stare decisis and the earlier Whole Woman’s Health decision. It’s not quite a slam dunk, though, which is why this case will get a lot of attention from the media, especially from those (on both sides) who see this court as determined to reverse Roe at the first possible opportunity. This case may not live up to their expectations, but it will be lit enough until Roberts lowers the boom.