In June 2016, an eight-member Supreme Court struck down a Texas law that required doctors who perform abortions to have the authority to admit patients at a local hospital. The makeup of the court has changed significantly since then: In 2017, Justice Neil Gorsuch was confirmed to replace the late Justice Antonin Scalia, who died a few weeks before the Texas case was argued, and Justice Anthony Kennedy retired in 2018 and was replaced by Justice Brett Kavanaugh. But although the court by most measures has become more conservative, the justices today granted a request from abortion providers to block a similar Louisiana law from going into effect while the providers appeal a ruling from the U.S. Court of Appeals for the 5th Circuit, in a dispute that some court-watchers regarded as a bellwether for the court’s possible direction in future abortion cases.
The Louisiana law at the center of the dispute was enacted in 2014 but has never gone into effect. It requires doctors who perform abortions in the state to have “active admitting privileges” – the authority to admit patients and to provide diagnostic and surgical services – at a hospital within 30 miles of the clinic where they provide abortion care.
In 2016, after the death of Justice Antonin Scalia, the Supreme Court struck down a similar law from Texas. Defending the law, the state argued 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 there was no evidence that the requirement actually promoted that interest, while at the same time the law made it significantly harder for women to obtain an abortion.
A federal trial court agreed with the abortion providers that Louisiana’s law is unconstitutional because it does “little or nothing for women’s health” but would “cripple women’s ability to have an abortion.” But last fall the U.S. Court of Appeals for the 5th Circuit reversed that ruling, setting the stage for the law to go into effect for the first time.
Last week the abortion providers went to the Supreme Court, asking the justices to bar Louisiana from enforcing the admitting-privileges requirement until the providers can file – and the justices can rule on – a petition for review. Emphasizing that the Louisiana law is virtually indistinguishable from the Texas law that the Supreme Court deemed unconstitutional, the providers warned of serious consequences if the law is allowed to go into effect: There will not be any doctors in the state to perform abortions after 17 weeks of pregnancy, and there will be only one doctor available to provide abortions in the earlier stages of pregnancy. As a result, they argued, “some women could be completely denied the choice to terminate a pregnancy and forced to carry the pregnancy to term.” What’s more, they added, any clinics that are forced to close if the law goes into effect are “unlikely to ever reopen,” even if the law is later declared unconstitutional.
In a brief filed a few days later, the state urged the justices to stay out of the dispute and allow the law to go into effect. The state asserted that the law would have a very different impact than the Texas law that the justices had struck down, and a far less severe effect than the providers had prophesied. Because only one of the unnamed abortion providers challenging the law had actually experienced real problems getting admitting privileges, the state explained, “only one of Louisiana’s six abortion providers would cease practice as a result of” the law, and “none of Louisiana’s three abortion clinics would have to close.”
And in any event, the state assured the court, it did not plan to shut down abortion clinics overnight, as the providers had suggested. Instead, the state clarified, it “envisions a regulatory process that begins, logically, with collecting information from Louisiana’s abortion clinics and their doctors.”
Louisiana’s law was scheduled to go into effect on Monday, February 4. On February 1, Justice Samuel Alito gave the providers a short-term reprieve, barring the state from enforcing the law for a few more days to give the Supreme Court more time to review the briefs that had been filed. Alito stressed that his order did not “reflect any view regarding the merits of the petition” for review that the providers have said they intend to file.
In a brief order issued late tonight, the Supreme Court put the law on hold indefinitely – at least until the justices can rule on a petition for review, but, in all likelihood, until they can hear oral argument and rule on the law’s constitutionality. Chief Justice John Roberts joined the court’s four more liberal justices in voting to grant the stay, while four conservative justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – all indicated that they would have denied the providers’ request and allowed the state to enforce the law.
Kavanaugh also wrote a separate dissent from the order granting the providers’ request to block the law. The central question in the case, he reasoned, is whether the admitting-privileges requirement imposes an “undue burden” on a woman’s right to obtain an abortion, which in turn hinges largely on whether three doctors who perform abortions at the state’s clinics can obtain admitting privileges – a question on which the lower courts reached different conclusions. Therefore, Kavanaugh explained, he would deny the providers’ request to bar the state from enforcing the law so that the three doctors and local hospitals could resolve the admitting-privileges question once and for all.
If the doctors cannot obtain admitting privileges, Kavanaugh stressed, they can return to court. But if they can, and they can continue to perform abortions, he suggested, the law would not impose an undue burden. By contrast, Kavanaugh emphasized, the Supreme Court’s approach – blocking the law and presumably reviewing the case next term — “will take far longer and be no more beneficial than the approach suggested here.”
With the law now on hold, nothing is expected to happen in the case until the providers file their petition for review, which is due in mid-April. 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.