Justices asked to enter abortion fray (Updated)

[UPDATE: On January 29, Justice Samuel Alito directed the state to file a response to the challengers’ request by 3 p.m. on Thursday, January 31. ]

The hot-button issue of abortion returned to the Supreme Court today. Two doctors who perform abortions and an abortion clinic asked the justices to block a lower-court ruling that upheld a Louisiana law that, according to a federal trial court, would leave “only one physician providing abortion in the entire state.” The challengers want the Supreme Court to put the lower court’s decision on hold – which would mean that the state could not enforce the law – to give them time to file a petition for review; the justices’ ruling on today’s request could tell us a lot more about how the Roberts Court, more conservative since the retirement of Justice Anthony Kennedy last year, might approach abortion cases going forward.

The case is a challenge to a Louisiana law that requires physicians who perform abortions in the state to have “active admitting privileges” – the ability not only to admit patients, but also to provide diagnostic and surgical services – at a hospital within 30 miles of the facility where the doctor provides abortions. In 2016, a divided eight-member Supreme Court struck down a similar law from Texas, which that state had argued was intended to protect the health of pregnant women. Justice Anthony Kennedy, who retired last year, joined the court’s four more liberal justices in concluding that, although the state has a legitimate interest in protecting women’s health, there was no evidence that the admitting-privileges requirement promoted that interest. On the other hand, the majority stressed, the admitting-privileges requirement made it much harder for women to obtain abortions.

Louisiana itself had described the admitting-privileges requirement as identical to the one struck down, and a federal district court declared the law unconstitutional, reasoning that the requirement does “little or nothing for women’s health” but would “cripple women’s ability to have an abortion.” In September 2018 the U.S. Court of Appeals for the 5th Circuit reversed, and 10 days ago the full 5th Circuit rejected the challengers’ request to rehear the case.

Today the challengers urged the justices to intervene and bar the state from enforcing the admitting-privileges requirement until the challengers can file (and the Supreme Court can rule on) a petition for review. They argue that the Supreme Court is likely to take up the case and reverse the 5th Circuit’s decision – an important criterion for emergency relief – because the law is virtually indistinguishable from the Texas one that the Supreme Court has already deemed unconstitutional.

And if the law is allowed to go into effect, the challengers say, the consequences will be serious: There will not be a doctor in Louisiana to perform abortions for women after 17 weeks of pregnancy, and only one doctor for the earlier stages of pregnancy. Because “one doctor cannot possibly meet the demands of all women who seek abortions in Louisiana,” they emphasize, “some women could be completely denied the choice to terminate a pregnancy and forced to carry the pregnancy to term.” Moreover, they add, if clinics are forced to close temporarily while the law is being enforced, they are “unlikely to ever reopen.”

The challengers’ request will go first to Justice Samuel Alito, who now handles emergency appeals from the geographic area that includes Louisiana. Alito can act on the request himself, although he is more likely to refer it to the full court. The first step, however, will probably be to call for a response to the challengers’ request from Louisiana.

This post was originally published at Howe on the Court.