Abortion Appeals Waiting as U.S. Supreme Court Returns for New Term
Abortion Appeals Waiting as Supreme Court Returns for New Term
(Bloomberg) -- Abortion cases are coming to the U.S. Supreme Court, and they’re only getting harder for the justices to avoid.
The court next week starts a new term that will give the clearest indication yet of how eager the justices are to roll back the right to end a pregnancy. Rulings on major cases could come next June in the heat of the presidential campaign.
Abortion opponents are likely to get a more receptive audience now that Justice Brett Kavanaugh has replaced the retired Justice Anthony Kennedy. The eventual goal is to overturn the 1973 Roe v. Wade ruling, which legalized the procedure nationwide.
It will be a test for Chief Justice John Roberts, who probably holds the pivotal vote. Roberts often tries to steer the court away from divisive issues, an approach that may explain why the court largely ducked the abortion issue last term.
“After this term, I think we’ll have a lot more clarity about the court moving forward on the abortion issue,” said Rachel Morrison, a lawyer with Americans United for Life, an anti-abortion group.
The first clue could come as early as this week, when the justices are scheduled to issue a list of new cases they will hear. The candidates include a challenge to a Louisiana law that would require doctors who perform abortions to have admitting privileges at a local hospital.
A federal appeals court upheld the law, even though the Supreme Court struck down similar Texas restrictions in 2016, before Kennedy retired. The court said the Texas measure provided negligible health benefits for women while forcing clinics across the state to close.
Roberts Vote
In a 2-1 opinion, the 5th U.S. Circuit Court of Appeals said the Louisiana law’s impact wasn’t nearly as great as in Texas. The majority said the law wasn’t forcing any clinics to close, blaming doctors for not making good-faith efforts to get the required privileges.
“The vast majority largely sat on their hands, assuming that they would not qualify,” Judge Jerry Smith wrote for the majority. Opponents say the law is indistinguishable from the rules struck down in the Texas case.
The Louisiana case’s history gives it a better-than-usual chance for review. In February, Roberts joined the four Democratic-appointed justices to temporarily keep the law from taking effect. Justices who vote for that type of stay order typically do so only when they are prepared to take up the underlying appeal.
But the case also presents a risk for the court’s liberal wing. Roberts dissented from the Texas ruling, and high court review of the Louisiana case would put him in position to overturn the earlier decision if he chooses.
“The 5th Circuit has put the court in an impossible situation,” said Travis J. Tu, the lead lawyer challenging the law for the Center for Reproductive Rights. “They could choose not to take the case, but of course that sends a message about the court’s commitment to its own precedent. Or they could take it, which would mean that the Supreme Court has a major abortion case on its docket in an election year.”
One possibility -- though perhaps not the most likely one -- is that the justices could reverse the appeals court ruling without even hearing arguments. That would spare Roberts and the court from a high-profile argument and months of attention on the issue.
Ultrasound Case
Complicating matters is a separate case that raises overlapping issues. Indiana is asking the court to reinstate a requirement that women undergo an ultrasound at least 18 hours before an abortion.
Critics of the law say the 18-hour requirement, much like the admitting-privileges rule, serves little purpose other than to thwart access to abortion. Abortion-rights advocates say the measure would force many women to travel twice to a clinic that may be hundreds of miles away, or to stay overnight nearby.
The high court appeal concerns the waiting period and doesn’t affect other aspects of Indiana’s informed-consent law, including its requirements that the woman be given information about the fetus and the opportunity to see the ultrasound. Indiana contends the 18-hour requirement gives the woman time to reflect on that information before she makes a final decision.
From the Supreme Court’s perspective, the Indiana case differs from the Louisiana dispute in a key respect: A federal appeals court struck down the Indiana requirement, meaning the high court’s conservatives are likely to be the ones eager to take it up.
‘Relevant Information’
“It seems likely that five justices will see real value in the informed consent laws and in having relevant information conveyed in time for a women to have a chance to think over the decision in light of the information, even if that causes a substantial burden,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center in Washington.
The Louisiana and Indiana cases will be before the justices in Tuesday’s private conference before the formal start of the term. The agenda also includes an appeal that asks the court to give abortion opponents more freedom to approach women as they enter clinics.
None of those cases directly challenges Roe or the 1992 Planned Parenthood v. Casey decision, which reaffirmed the right to abortion. Although other cases in the pipeline guarantee the court will be asked to take that step soon, few expect the justices to do it during this term.
“The reality is that’s not going to happen,” said Morrison, the Americans United for Life lawyer. “The court across the board in a lot of areas seems to take a more step-by-step approach. I don’t think that’s going to change when it comes to abortion anytime soon.”
To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net
To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, John Harney
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