SCOTUS blocks Louisiana abortion law from taking effect

Posted February 11, 2019

In that case, the high court voted 5-3 to rule that portions of a Texas law regulating abortion doctors and clinics constitute an "undue burden" on a woman's right to abort her child and are therefore unconstitutional.

The state law requires abortion providers to have admitting privileges at nearby hospitals, a demand that some argued would have shuttered multiple abortion clinics. When John Roberts voted to uphold President Obama's Affordable Care Act in a 5-4 ruling that squashed a transparent political maneuver by the conservatives on the Court and their allies in the lower courts, it became clear that the Chief Justice was very concerned about people losing their faith in the Supreme Court's legitimacy. Associate Justices Clarence Thomas, Samuel Alito and Neil Gorsuch joined the court's newest member, Brett Kavanaugh, in a four-page dissent. Chief Justice John Roberts has never cast a unilaterally pro-choice vote, and I don't expect him to anytime soon.

On Thursday evening, the Supreme Court temporarily blocked a law that would have restricted abortion rights in Louisiana.

During the night of February 7, the Supreme Court correctly instructed Louisiana that it cannot put its restrictive targeted regulation of abortion providers (TRAP) laws into effect until a lawsuit challenging them can be adjudicated. But even if this win holds, the case shows the plan of attack that the justices, and right-wing legal activists, could use to neuter Roe v. Wade, cautions law professor Leah Litman in a new Washington Post editorial.

In cases on what has been called the court's "shadow docket", those in the majority typically do not provide detailed reasoning for why they granted or denied the requests. The justices, however, did not rule on the merits of the case.

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Today, a Louisiana abortion law is not taking effect.

A federal trial judge found the law unconstitutional in view of the Supreme Court's ruling in the Texas case. "If the justices decide to take up the case, which seems likely because the prospect that the Supreme Court will grant review is one of the criteria that the justices considered before granting the stay, oral argument would likely be held in the fall of 2019 or winter of 2020, with a decision by the end of June 2020".

So what is the future of the Louisiana case?

In places like Louisiana, a requirement for doctors to obtain hospital admitting privileges is just the most recent roadblock for women seeking abortion.

The court will nearly certainly agree to give the case a full review in the autumn, and at that point it could issue a formal opinion affirming a lower-court's decision to uphold the law - and opening the door for similar restrictions to be enacted in other states. The vote by Roberts was something of a surprise, since he was one of the dissenters three years ago when the Court struck down a almost identical state law from Texas.

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In 2017, the law was struck down by the U.S. District Court in Baton Rouge, La., but that decision was later reversed by the U.S. Court of Appeals for the 5th Circuit in New Orleans. But abortion rights groups who opposed his nomination took it as confirmation that he is hostile to the right to abortion established in Roe v. Wade.

"We know there are four justices who were willing to allow a law to take effect even though the Supreme Court struck down an identical law less than three years ago" said Jennifer Dalven, who heads the American Civil Liberties Union's Reproductive Freedom Project. "This should be an easy case - all that's needed is a straightforward application of the Court's own precedent". Had Kavanaugh written that Louisiana "pinky promised to not violate the law", his reasoning would have been no less absurd. Kavanaugh is on the Supreme Court because he pinky-swore Susan Collins he'd uphold Roe.

The Louisiana clinics had argued that they would have been forced to stop performing abortions immediately and that clinics, once closed, are hard to reopen.

The U.S. Supreme Court could, at some point, reaffirm its support for Roe and reject any infringement of its protections.

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