The Supreme Court was already scheduled to take on a range of high-profile and potentially controversial issues in the next few months, including federal protection for LGBT employees, the Trump administration’s decision to end the program known as DACA, and gun rights. This morning the Supreme Court’s new term, which starts next Monday, became even more momentous, with the announcement that, for the first time since the retirement of Justice Anthony Kennedy, the court will tackle the hot-button issue of abortion. The justices agreed today to hear a challenge to a Louisiana law that requires doctors who perform abortions in the state to have the right to admit patients at a nearby hospital. In a late-night order last February, Chief Justice John Roberts provided the fifth vote needed to block the state from enforcing the law until abortion providers could file a petition seeking review of a decision by the U.S. Court of Appeals for the 5th Circuit upholding the law.
The justices’ announcement that they will weigh in on the constitutionality of the Louisiana law comes less than three and a half years after the court – following the death of Justice Antonin Scalia – struck down a similar law from Texas by a vote of 5-3. Texas had tried to defend the law by arguing that the admitting-privileges requirement was intended to protect the health of pregnant women, but Kennedy joined the court’s four more liberal justices in holding that the state had not provided any evidence to show that the admitting-privileges requirement actually served that interest. By contrast, the majority concluded, the requirement made it significantly more difficult for women to get an abortion.
The abortion providers have emphasized that the Louisiana admitting-privileges requirement is, by the state’s own admission, virtually identical to the Texas requirement that the court invalidated in 2016. Moreover, they add, if the law goes into effect, it would leave only one doctor performing abortions in the state during the early stages of pregnancy, and none after 17 weeks of pregnancy. But the court has changed since it struck down the Texas law: Justice Neil Gorsuch filled the vacancy created by Scalia’s death, and Kennedy retired last year, replaced by Justice Brett Kavanaugh. That left Roberts, who dissented in the Texas case, to join his more liberal colleagues in temporarily barring Louisiana from enforcing the admitting-privileges requirement.
Today’s grant sets up a major showdown on abortion, with a decision likely during the middle of the 2020 presidential campaign. Although we don’t know why Roberts voted to block Louisiana from enforcing the law, the challengers will no doubt hope to convince him that the law is so similar to the Texas law that the court invalidated just a few years ago that respect for precedent requires the justices to strike it down too. Perhaps significantly, the justices also agreed to take up an appeal from Louisiana arising from the same challenge. The state had urged the justices to deny the abortion providers’ petition for review but added that, if the justices did grant that petition, the court should also consider whether the abortion providers have the right to sue on behalf of their patients in this case.
In United States v. Sineneng-Smith, the justices agreed to review a decision by the U.S. Court of Appeals for the 9th Circuit striking down a federal law that makes it a crime to encourage or cause illegal immigration for financial gain. The lower court’s ruling came in the case of Evelyn Sineneng-Smith, who ran an immigration-consulting business in California that helped home-health-care workers who were in the United States without proper documentation to apply for permission to work here and, eventually, for legal permanent residence in the United States. Sineneng-Smith was convicted on charges that she had convinced clients to hire her to file their applications for a visa program for which she knew they were not eligible. The 9th Circuit threw out Sineneng-Smith’s conviction, ruling that the law under which she had been convicted violates the First Amendment because it applies too broadly – potentially making it a crime, for example, for a grandmother to encourage her grandson to overstay his visa or for a lawyer to recommend that a client stay in the United States while removal proceedings are pending. The government asked the Supreme Court to review that ruling, which it agreed to do today.
The justices also granted a pair of cases involving the power of the U.S. Forest Service to grant rights-of-way through national-forest lands traversed by the Appalachian Trail. Both the U.S. Forest Service and Atlantic Coast Pipeline, which planned to construct a 600-mile natural-gas pipeline from West Virginia and Pennsylvania to Virginia and North Carolina – had asked the court to review a ruling by the U.S. Court of Appeals for the 4th Circuit holding that the trail is part of the National Park System, so that the Forest Service could not grant a right-of-way under the trail. Both the government and Atlantic Coast had cautioned that, if the lower court’s ruling is allowed to stand, it could “hamper the development of energy infrastructure in the eastern United States.”
Today’s grants will likely be argued early next year. The justices are expected to issue more orders from Tuesday’s conference on Monday, October 7, at 9:30 a.m. Those orders could include action on some of the other petitions that the justices considered on Tuesday – such as the dispute over the constitutionality of an Indiana law requiring pregnant women to have an ultrasound at least 18 hours before getting an abortion – as well as New York City’s motion to dismiss the challenge to its now-repealed gun law.
This post is also published on SCOTUSblog.