Over the dissents of four Justices, the Supreme Court on Thursday night temporarily barred the state of Louisiana from enforcing a law that has the potential for making abortion unavailable to many and perhaps most women in the state.
Like the Texas law that the court previously struck down, the Louisiana law requires any doctor performing an abortion to have admitting privileges at a nearby hospital; it also requires that clinics that provide abortions be, in effect, minihospitals, with everything from wide corridors to expensive equipment.
They blamed the four-term ME senator for providing Kavanaugh with the opportunity to join the losing side of a 5-4 ruling that blocked proposed restrictions on who could perform abortions in Louisiana. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted their dissent but did not join the Kavanaugh opinion.
Kavanaugh argues that since the Louisiana law has a 45-day grace period, then if doctors who perform abortions could get admitting privileges at a hospital then there was no "undue burden" on women. "The Louisiana law has never been enforced, and the Supreme Court in 2016 found a almost identical Texas law to be unconstitutional".
This decision is unlikely to be the end of the Louisiana case, as the Supreme Court could reconsider it next term. Justice Brett Kavanaugh, the man who assured Sen.
"The U.S. Court of Appeals for the 5th Circuit maintained that the burdens imposed by Louisiana's admitting privileges requirement are less severe than the burdens imposed by the same requirement in Texas", writes Litman.
Because so few abortion providers receive these privileges, the policy would effectively close all but one of the state's few abortion clinics, Tu said. Reduced to eight justices after the death of Justice Antonin Scalia, the court ruled by a 5-3 margin that the Texas law was unconstitutional. The petitioners argue that nearly all abortion clinics in the state would close while the matter is pending in the Supreme Court and that the justices should keep the law from going into effect during that time.
In dissent, Kavanaugh said that the Court should have allowed implementation of the law to resolve the dispute over its effects on access. The appeals court denied January 18 a request for a review by all the judges. He wrote he was prepared to reverse course if it did in fact burden a woman's access to abortion, as opponents claimed.
But if the Supreme Court were to overturn its ruling on the Texas law and validate the Louisiana law, it would have effectively overturned Roe v. Wade, yet in a way that won't produce screaming headlines reading "Roe Overturned!"
After decades of relative stability under the court-imposed Roe precedent, the ground on abortion rights in the U.S. could be shifting.
"In practice, it's enormously restrictive because many hospitals will not give privileges to abortion providers", said Werhan. "It sets the stage for a full review that could go either way". His conservative views on abortion, said to have been shown when he was a lower court judge, were a major factor in opposition to his nomination to the Court previous year by President Trump. "And yet, when it came to a case involving them, he was able to put that aside and rule impartially and independently".
The case was seen as an important test for the Court's newly constituted conservative majority. Instead, Kavanaugh's opinion suggests "that he takes the precedent seriously as now binding law". Notably, Justice Anthony Kennedy, who was considered to be a moderate swing vote, has retired. "Rather, the question should be whether the Louisiana law confers any benefits relative to the cost imposed on abortion". It would have placed Roberts right alongside the justice who accused the Clintons of running a political hit campaign against his Supreme Court nomination once credible allegations of sexual assault against him surfaced.
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".
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