The Supreme Court blocks abortion-clinic regulations in Louisiana

By S.M. | NEW YORK

DURING BRETT KAVANAUGH’S Supreme Court confirmation battle last year, there was much speculation over the future of reproductive rights. Supporters of Roe v Wade, the 1973 case recognising a constitutional right to abortion, worried that then-Judge Kavanaugh—in contrast to Anthony Kennedy, the justice he was tapped to replace—would solidify a five-justice majority to jettison the precedent. Pro-lifers hoped he would do just that. But until this week, America had no real idea of how the new conservative bloc would handle controversies over reproductive rights. With an interim decision on February 7th involving a Louisiana law, the picture is coming into focus—and it seems less worrying to supporters of abortion rights than many have feared.

The law at issue in June Medical Services v Gee is the Unsafe Abortion Protection Act, passed in 2014, which requires abortion providers in Louisiana to have admitting privileges at hospitals within a 30-mile radius of their clinics. In 2016, the Supreme Court struck down an essentially identical Texas law in Whole Woman’s Health v Hellerstedt, finding it inconsistent with Planned Parenthood v Casey, the court’s 1992 ruling that revised and extended Roe. In the oral argument in Whole Woman’s Health, the liberal justices’ merciless questioning of Scott Keller, the state’s solicitor general, laid bare Texas's true motivation behind the law: limiting abortion access. After scrutinising the record, Justice Stephen Breyer “found nothing” showing that “the new law advanced Texas’ legitimate interest in protecting women’s health”. In his decision for a 5-3 court, Justice Breyer noted that “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment”, Mr Keller “admitted that there was no evidence in the record of such a case”. The regulations had “nothing to do with ability to perform medical procedures”. They had everything to do with slicing the number of abortion clinics in the state from 40 to fewer than 10 and imposing an unconstitutional “undue burden” on a woman’s right to choose.

When Louisiana’s law was challenged under this rule, a federal district court struck it down as a clear violation of the Whole Woman’s Health precedent. The Unsafe Unborn Protection Act does “little or nothing for women’s health”, the trial judge wrote, while “crippl[ing] women’s ability to have an abortion”. But the Fifth Circuit Court of Appeals found otherwise, citing factual differences between the Texas and Louisiana contexts and arguing that no crisis of abortion access would ensue from the admitting privileges requirement.

Days before the law was set to take effect, the plaintiffs asked the Supreme Court to issue an emergency stay of the Fifth Circuit decision—a move that would temporarily block the enforcement of the contested law while they prepared a full appeal. The rationale for the stay was strong. As Judge James Dennis of the Fifth Circuit wrote in his dissent from his colleagues’ refusal to reconsider the ruling, the judgment “is in clear conflict with the Supreme Court’s decision in Whole Woman’s Health” and the attempt to distinguish the Louisiana law from its “almost identical” Texas analogue is “meritless”. The majority panel’s reading of Whole Woman’s Health is “erroneous and distorted”, he wrote, joined by three colleagues. In urging the Supreme Court to block enforcement of the law, the plaintiffs noted the “disastrous consequences” that would ensue: the admitting-privileges rule would “leave only one physician providing abortions in the entire state” for the roughly “10,000 women who seek abortion services in Louisiana each year”.

Because of the Supreme Court's new conservative majority few observers predicted that it would side with the abortion providers by blocking a regulation that was modelled on a law deemed unconstitutional less than three years earlier. Justice Kavanaugh now sat in Justice Kennedy’s seat; Justice Neil Gorsuch, an advocate of natural law, occupied Justice Antonin Scalia's long-empty chair; and Chief Justice Roberts had not been in the majority in Whole Woman’s Health: he, along with Justice Clarence Thomas, had signed Justice Samuel Alito’s dissenting opinion. But on February 7th, after an unusually long delay for an order on an emergency stay—the justices took nearly a week to rule after all the briefs had been filed—the chief justice took the rare step of joining his four liberal colleagues to grant the stay, while all of his fellow conservatives dissented. (Chief Justice Roberts has anchored 5-4 rulings with the liberal wing only five times in his 14 years on the bench, including twice to save Obamacare.)

The five-justice majority did not articulate its reasons for blocking the law. Three of the dissenters were silent, too. Only Justice Kavanaugh explained his vote in writing, arguing that since the matter of whether the law poses an “undue burden” is an “intensely factual question”, the better path is to let it take effect (with its 45-day transition period, a feature added at the 11th hour as a hoped-for saving grace during last week’s briefing) and see what impact it has on existing abortion providers. Doctors could always challenge the rule later, he reasoned, if they aren’t able to gain admitting privileges.

What happens next? The law will probably remain blocked until the spring of 2020, when the justices are likely to issue a full decision on its constitutionality following briefing and oral argument. It is possible Chief Justice Roberts will switch sides then, choosing to overrule or undermine the holding in Whole Woman’s Health. But given his vote on the stay—and in light of his prime directive to preserve the integrity of the Supreme Court against charges of politicisation—that change of course looks unlikely. When it comes to abortion rights, the five-justice conservative bloc seems split into three camps. Justices Alito, Gorsuch and Thomas will bless any abortion regulation that comes their way, even if it violates the court’s previous decisions. Justice Kavanaugh will vote for most restrictions while purporting—disingenuously, if necessary—to uphold precedent. And Chief Justice John Roberts, hardly a staunch advocate of abortion rights, will be in no hurry to undermine them.