Louisiana limit on abortion blocked temporarily
on Mar 4, 2016 at 4:21 pm
Over the lone dissent of Justice Clarence Thomas, the Supreme Court on Friday afternoon blocked the continued enforcement of a Louisiana law that required doctors who perform abortions to have a professional right to send patients to a hospital within thirty miles of their clinics. The Court did not give a full explanation, but did say it was following what it had done late last June in blocking a Texas law imposing the same rule, and other restrictions.
Just two days ago, the Justices had examined the Texas law during an intense hearing, and presumably cast their first, preliminary vote on how to rule in that case at a private Conference Friday morning. But there was nothing in the text of the Court’s afternoon order on the Louisiana law that would give a reliable hint of where it is headed on the constitutional controversy over abortion clinic restrictions.
The Louisiana situation is factually different from that in Texas, since doctors and clinics in Louisiana have argued that enforcement of the admitting privileges requirement would leave the state with a single clinic with only a single doctor, while the Texas law has been challenged on the basis of worry that it would leave eight or nine clinics throughout the state. Another difference is that the admitting privileges provision has been in effect across the state of Texas for months, but has been in force in Louisiana for only nine days.
In addition, the Texas controversy also focuses on another provision in the Texas law that is not in the Louisiana statute: a requirement that all abortion clinics upgrade to be able to provide significant surgical services, whether or not the clinic ever does any surgery. Presumably, in the preliminary vote the Justices cast in private on Friday would take into account both the privileges restriction and the one mandating surgical facilities.
The privileges obligation in Louisiana was barred from enforcement by a federal trial judge, but the U.S. Court of Appeals set that aside on February 24, leading clinics and doctors to ask the Supreme Court to temporarily lift the Fifth Circuit’s enforcement order, and that is what the Justices did. Although Justice Thomas was the only member of the Court to specifically note that he would not have disturbed the Fifth Circuit’s order, there is no way to know whether any of the other Justices were inclined to do the same, but chose not to make note of it.
However, it would have taken the votes of five Justices to take the action that the Court did, so at least that number supported the action. The order said that the lifting of the Fifth Circuit’s Louisiana enforcement order was “consistent with the Court’s action” last June 29 in a similar dispute over both aspects of the Texas law — the privileges requirement, and the surgical facilities mandate. The June order did not differentiate, even though, in Texas, the privileges requirement has been in effect almost everywhere in the state, while the surgical facilities provision has not been.
There is thus a bit of uncertainty about just what the Justices are thinking right now about both of these types of restriction. That may become clear only when a decision emerges in the Texas case, later this year. In the meantime, the clinics and doctors will be moving ahead with an appeal in the Louisiana case, with the outcome in the Supreme Court likely dependent upon the decision that emerges in the Texas controversy. The Louisiana plea to the Court was titled June Medical Services v. Gee (15A880).
