Highly Likely That Abortion Will Loom Large at US Supreme Court Next Term

By Elizabeth Slattery | February 8, 2019 | 4:35pm EST
WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

Late Thursday night, the Supreme Court put on hold a Louisiana law that would require abortion doctors to have admitting privileges at a hospital within 30 miles of their clinic.

The Louisiana law was introduced by state Rep. Katrina Jackson, a Democrat, and passed overwhelmingly in the state’s House of Representatives and Senate in 2014 by a vote of 85-6 and 34-3, respectively.

In 2016, the court ruled that a similar Texas law constituted an “undue burden” on access to abortion within the state. In addition to requiring admitting privileges, the Texas law also would have required abortion clinics to meet the same cleanliness and safety standards as ambulatory surgical centers.

The case was argued and decided not long after Justice Antonin Scalia died, and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Anthony Kennedy voted to strike down the Texas law in Whole Women’s Health v. Hellerstedt.

One of Louisiana’s four abortion clinics challenged the new law.

A federal district court, citing the Hellerstedt decision, held that the law advanced “minimal” health benefits while placing “substantial burdens” on women seeking an abortion.

But there are a number of reasons why a state would decide that abortion doctors need to obtain admitting privileges at a nearby hospital, including furthering the continuity of care for patients who experience complications and addressing the problem of emergency rooms not having enough OB-GYN specialists on call to deal with complications resulting from an abortion.

There’s also an additional quality control element because the application process includes peer review of the applicant. After all, although abortion advocates claim it’s one of the safest types of medical procedures, complications such as infection, hemorrhage, and uterine perforation, among others, can occur even in early-stage abortions.

On appeal, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit reversed the district court ruling, finding that the facts on the ground in Louisiana were remarkably different from those in Texas.

Only one doctor in Louisiana had been unable to gain admitting privileges at a nearby hospital and no clinics had closed due to the new law.

By comparison, 32 of 40 clinics in Texas had closed due to doctors’ inability to obtain admitting privileges, requiring a large percentage of women in the state to have to drive 150 miles or more to obtain an abortion. The panel further asserted that three additional abortion doctors “could likely obtain privileges.”

The abortion clinic asked the Supreme Court to temporarily enjoin Louisiana’s law while it appeals the 5th Circuit’s ruling. Courts will stay the enforcement of a law that has been challenged in order to preserve the status quo while the legal challenge is pending.

The Supreme Court granted the clinic’s request over the dissent of Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

They would not have halted the Louisiana law, as Kavanaugh explained, because “the status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period.” In his view, it was not necessary for the court to stop Louisiana from enforcing the law while the legal challenge continues because the transition period would already preserve the status quo.

The 45-day transition period before the new law would go into effect affords doctors an opportunity to seek admitting privileges without burdening any women who wish to obtain an abortion during that time.

In a brief filed with the Supreme Court, the state explained that the Louisiana Health Department’s first step would be to “collect accurate, current information” about current abortion providers since it has been more than three years since the trial in this case and the facts on the ground may have changed.

During this administrative review process, if a clinic did not comply with the new law, it would have the chance to submit a “plan of correction” to the state. And there would be an administrative appeals process before the state could revoke the license of any clinic that could not, or would not, comply with the new law.

Kavanaugh wrote: “The law has not yet taken effect, so … [t]hat means that the parties have offered, in essence, competing predictions about whether [other] doctors can obtain admitting privileges.”

He concluded that he would deny the stay and allow the challengers to file another complaint “if the Fifth Circuit’s factual prediction about the doctor’s ability to obtain admitting privileges proves to be inaccurate.” If these doctors are, in fact, able to obtain admitting privileges, then there would be no basis to overturn Louisiana’s law.

The other five members of the court—including Chief Justice John Roberts—did not explain why they halted the law.

However, the Supreme Court does not typically offer explanations as to why it does or does not grant an application for a stay. Two things to bear in mind are that this action does not reflect the justices’ views of the merits of the case, and halting a law is a good indication that the Supreme Court will decide to review the case.

It’s highly likely that abortion will loom large at the Supreme Court next term.

Elizabeth Slattery writes about the proper role of the courts, judicial nominations, and the Constitution as a legal fellow at The Heritage Foundation. Read her research. She co-hosts SCOTUS101, a podcast about everything that’s happening at the Supreme Court.

Editor's Note: This piece was originally published by The Daily Signal.

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