Supreme Court Blocks Louisiana Abortion Law as Kavanaugh Writes Dissent

By Zachary Stieber

The Supreme Court on Feb. 7 blocked a Louisiana law that required doctors carrying out abortions to have hospital admitting privileges within 30 miles, with Justice Brett Kavanaugh writing the dissent.

The 5-4 vote means the state cannot put into effect the law it passed, pending a full review of the case.

The law is very similar to a Texas measure, Whole Women’s Health v. Hellerstedt, that the justices struck down three years ago, arguing that there was no evidence that the requirement for hospital admitting privileges helped protect the health of pregnant women. Roberts dissented in that case.

The Louisiana case is June Medical Services v. Gee.

Fellow conservative Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch also dissented but Chief Justice John Roberts, who became the swing vote after Justice Anthony Kennedy’s retirement, sided with Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagen, and Samuel Breyer.

Louisiana abortion providers and a district judge who initially heard the case said one or maybe two of the state’s three abortion clinics would have to close under the new law. There would be at most two doctors who could meet its requirements, they said.

But the U.S. Court of Appeals for the Fifth Circuit, a federal appeals court in New Orleans, rejected those claims, doubting that any clinics would have to close and saying that the doctors had not tried hard enough to establish relationships with local hospitals. In January, the full appeals court voted 9-6 not to get involved in the case, setting up the Supreme Court appeal.

“Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges,” Judge Jerry Smith wrote for the panel, reported the Wall Street Journal. “In Texas, the number of women forced to drive over 150 miles increased by 350 percent. Driving distances will not increase in Louisiana.”

Reaction and Dissent

The justices voting for the hold on the law did not explain their vote. The Supreme Court could decide this spring whether to add the case to their calendar for the term that begins in October.

Louisiana Attorney General Jeff Landry, a Republican, told the Journal that he hoped the court would side with Louisiana if it gives the case a full review. The state law “is constitutional and consistent with our overall regulatory scheme for surgical procedures,” he said.

Nancy Northup, president of the Center for Reproductive Rights, which represented the challengers, hailed the ruling, saying, “The Supreme Court has stepped in under the wire to protect the rights of Louisiana women.”

While four justices dissented, Kavanaugh penned the dissent (pdf).

According to the newest Supreme Court justice, there are currently four doctors in Louisiana that perform abortions at the state’s three abortions clinics. One of the four doctors has admitting privileges at a nearby hospital.

Kavanaugh
Judge Brett Kavanaugh at the White House after President Donald Trump announced Kavanaugh’s nomination to the Supreme Court on July 9, 2018. (Samira Bouaou/The Epoch Times)

“The question is whether the other three doctors can obtain necessary admitting privileges,” he wrote. “If they can then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden … . By contrast, if the three doctors cannot obtain admitting privileges, then one or two of the three clinics would not be able to continue providing abortions.”

Kavanaugh said that both parties offered competing predictions about how the law would affect the doctors and noted that the higher court, the Fifth Court, concluded that the doctors could likely obtain admitting privileges. The best way to find out which prediction was right, he added, would be to let the law take effect.

“If we denied the stay, that question could be readily and quickly answered without disturbing the status quo or causing harm to the parties or the affected women, and without this court’s further involvement at this time,” Kavanaugh said. “That is because the state’s regulation provides that there will be a 45-day regulatory transition period before the new law is applied.”

If the law took effect and the doctors couldn’t obtain admitting privileges during the transition period, then the doctors could file a complaint or motion for preliminary injunction. If they could, then the law would not impose an undue burden on under Whole Women’s Health v. Hellerstedt.

The Associated Press contributed to this report.