In early February, the Supreme Court put a temporary hold on a Louisiana law that requires doctors who perform abortions in the state to have the authority to admit patients at a nearby hospital. Chief Justice John Roberts joined the court’s four more liberal justices in granting a request from abortion providers to bar the state from enforcing the law until the providers could file a petition for review of a ruling by the U.S. Court of Appeals for the 5th Circuit upholding the law. That petition was filed today, setting up the prospect of a major showdown on abortion next term.
Today’s petition was not the first time that the justices have been asked to weigh in on a law requiring abortion providers to have admitting privileges at local hospitals. Less than three years ago, after the death of Justice Antonin Scalia, the court – by a vote of 5-3 – struck down a similar law from Texas. In that case, Texas had defended the law by arguing that the admitting-privileges requirement was intended to protect the health of pregnant women, but Justice Anthony Kennedy joined the court’s liberal justices in holding that there was no evidence that the requirement actually promoted that interest, while at the same time the requirement made it significantly more difficult for women to obtain an abortion.
In the appeal filed today, the Louisiana abortion providers portray the Louisiana law at the heart of their case as virtually identical to the Texas law that the justices struck down in 2016. “If anything,” the providers suggest, the Louisiana law imposes an even greater burden on a woman’s ability to obtain an abortion than the Texas one: The Louisiana law “would shutter every clinic in Louisiana but one, leaving only one doctor to care for every woman seeking an abortion in the state” – which would mean that many women would effectively be unable to get an abortion. Moreover, the providers add, there would be no doctors at all to provide abortions for women after 17 weeks of pregnancy.
The abortion providers urge the justices to grant their petition for review and reverse the 5th Circuit’s ruling upholding the Louisiana law. In their view, that ruling is so at odds with the justices’ decision in the Texas case that briefing and oral argument on the merits are not even necessary. But the makeup of the court has changed substantially since the ruling in the Texas case: The vacancy left by Scalia’s death was filled by Justice Neil Gorsuch, while Justice Brett Kavanaugh has replaced Kennedy, who retired last summer. The justices are likely to rule on the abortion providers’ petition before the court’s summer recess.
This post was also published on SCOTUSblog.