Abortion could return to the Supreme Court: In Plain English

In 2016, Justice Anthony Kennedy provided the fifth vote to strike down a Texas law that required doctors who perform abortions to have “admitting privileges” – the right to admit patients – at a local hospital. But Kennedy retired last year. So when two doctors who perform abortions, along with an abortion clinic, came to the Supreme Court in January, asking the justices to bar Louisiana from enforcing a similar law, many court-watchers saw the case as a bellwether for the Supreme Court’s abortion jurisprudence in the post-Kennedy era. Last month a divided court granted the doctors’ request and agreed to put the law on hold while the doctors seek review on the merits; if the justices take up the case, which they could do next term, they could tip their hands further.

The law at the heart of the challenge was passed in 2014, but it has never gone into effect. It requires doctors who perform abortions in Louisiana to have admitting privileges at a hospital within 30 miles of the clinic where they work.

Three years ago, just a few months after the death of Justice Antonin Scalia, the justices ruled, by a vote of 5-3, that a Texas law containing a similar admitting-privileges requirement was unconstitutional. Although Texas had argued that the legislature had enacted the admitting-privileges requirement to protect the health of pregnant women, the majority concluded that there was no evidence that the requirement actually advanced that goal; by contrast, the majority emphasized, the requirement made it much harder for women to obtain an abortion.

In the Louisiana case, a federal trial court ruled for the doctors. The admitting-privileges requirement is unconstitutional, the court held, because it does “little or nothing for women’s health” but would “cripple women’s ability to have an abortion.”

In September, a federal appeals court reversed the trial court and upheld the law. The facts of the Louisiana case, it explained, are “remarkably different” from the facts that prompted the Supreme Court to invalidate the Texas admitting-privileges requirement. In particular, the court of appeals observed, the Louisiana admitting-privileges requirement would have a “dramatically” lower impact on access to abortion than the Texas law.

With the Louisiana admitting-privileges requirement set to go into effect early this year, the challengers went to the Supreme Court. They asked the justices to temporarily block the state from enforcing the requirement until they can file, and the Supreme Court can rule on, a petition for review. Making their case for a stay of the law, the challengers told the justices that if the law were allowed to go into effect, there would be only one doctor performing abortions in the state in the early stages of pregnancy, and no doctors at all after 17 weeks of pregnancy. And without a stay, the challengers added, a later ruling that the law is unconstitutional would be a mostly empty victory, because any clinics that had already closed would be “unlikely to ever reopen.”

On February 7, the Supreme Court granted the challengers’ request. It barred the state from enforcing the law at least until the court decides whether to take up the case. If the court agrees to do so, the law will remain on hold until the court issues its opinion, which might not be until June 2020.

Four justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – dissented from the decision to block the law. This means that Chief Justice John Roberts, who voted with the dissent in the Texas abortion case, provided the fifth vote for the challengers in the Louisiana case.

As is often the case, there was no written explanation for either the decision to grant the stay generally or Roberts’ choice to join the court’s four more liberal justices. But two weeks later, Roberts would join the majority in reversing, without oral argument, a ruling by a Texas court that a death-row inmate was not intellectually disabled and was therefore eligible to be executed. Roberts explained that when the same inmate’s case had been before the court two years earlier, he had dissented, because he believed that the majority’s opinion did not provide state courts with clear guidance on how to determine whether an inmate is intellectually disabled. But even if that standard may be difficult to apply in other cases, Roberts concluded, it was “easy to see” that when the inmate’s case had returned to the state court after its first trip to the Supreme Court, the state court had “misapplied” the standard. One possibility is that the same principle was at play in the Louisiana case: Regardless of Roberts’ views on whether the decision in the Texas case was correct, he may feel (especially as the chief justice) compelled to follow it in a seemingly similar case. But there’s no way to know unless or until the justices grant review on the merits.

Kavanaugh also wrote separately to explain his dissenting vote, which he seemed to regard as proposing a middle ground. The key question in the case, he reasoned, is whether the state’s admitting-privileges requirement imposes an “undue burden” (the standard under the Supreme Court’s decision in the Texas case) on a woman’s right to obtain an abortion. The answer to that question, Kavanaugh continued, depends largely on whether the three doctors who currently perform abortions in Louisiana will be able to obtain admitting privileges at local hospitals. Because the lower courts (as well as the challengers and the state) disagree on that issue, Kavanaugh emphasized, the most efficient way to resolve the dispute would be to allow the law to go into effect and see what happens. If, as the challengers insist, the doctors cannot get admitting privileges, Kavanaugh observed, then they can come back to court. But if they can get privileges, he contended, then the law would not impose an “undue burden” and therefore would not be unconstitutional.

The challengers are expected to file their petition for review by mid-April, which would allow the Supreme Court to announce before its summer recess whether it will hear oral argument on the merits. If the Supreme Court agrees to do so, the more liberal justices almost certainly will regard this as a simple case after the ruling in the Texas case, so all eyes will be on Roberts and Kavanaugh. Will they follow the Supreme Court’s decision in the Texas case? Or will they decide, like the court of appeals, that the Louisiana case is sufficiently different to reach another result? Although it seems less likely, they could also join their three conservative colleagues in narrowing abortion rights. To add drama to the mix, the Supreme Court’s decision would likely come in the middle of the 2020 presidential campaign, making this a case to watch closely.

This post was originally published at Howe on the Court.