Abortion Opponents Aim for First Supreme Court Win in Kavanaugh Era

(Bloomberg) -- Abortion opponents may be about to collect their first dividends from the appointment of U.S. Supreme Court Justice Brett Kavanaugh.

The court will decide in the next few days whether to temporarily block a Louisiana law that requires abortion doctors to get admitting privileges at a local hospital.

The measure is almost identical to a Texas law the court struck down in 2016 as imposing an undue burden on women seeking abortions. The question is whether a change in the court’s composition since then -- with Kavanaugh replacing swing Justice Anthony Kennedy -- will lead the justices to let the Louisiana law take effect.

The 2014 Louisiana law requires doctors to have privileges at a hospital within 30 miles of the abortion facility. Abortion-rights advocates say the measure will leave the state with only one clinic and a single doctor who can perform abortions.

But a federal appeals court said on a 2-1 vote that the law wasn’t forcing any clinics to close. The court said doctors weren’t making good-faith efforts to get the hospital admitting privileges they need to comply with the law.

“The vast majority largely sat on their hands, assuming that they would not qualify,” Judge Jerry Smith wrote for the majority.

Whole Woman’s Health

A Shreveport abortion clinic and two unidentified doctors are asking the Supreme Court to block the ruling while the justices consider whether to take up an appeal. The appeals court ruling is set to take effect Monday unless the Supreme Court intervenes, though the state says no clinic would have to close immediately and there would be a lengthy process to determine compliance.

In a court filing Friday, the clinic and doctors said the impact would be immediate. The law, known as Act 620, imposes civil and criminal penalties for noncompliance.

"No law-abiding doctors without privileges will provide abortions in Louisiana once the mandate issues, and no law-abiding clinics will employ them to do so in any event," the group argued.

Should the court refuse to block the appeals court ruling, the 2016 Whole Woman’s Health v. Hellerstedt decision could lose much of its practical force, said Gillian Metzger, a constitutional law professor at Columbia Law School.

“If the Supreme Court doesn’t grant a stay, it may suggest that Whole Woman’s Health may be chipped back in practice,” Metzger said.

At the time, the Whole Woman’s Health decision appeared to be the biggest abortion-rights victory in a generation, in part because Kennedy’s vote had been in doubt. He sided with the liberals in the 5-3 ruling.

The court in 2016 said the Texas requirement provides “few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an undue burden on their constitutional right to do so.”

Although a decision letting the Louisiana law take effect would be a blow to abortion rights, it wouldn’t necessary spell doom for the broader right to abortion, said Michael Dorf, a constitutional law professor at Cornell Law School.

‘Paring Back’

“One could imagine the court paring back the abortion right substantially while affirming this sort of ruling, without upholding outright prohibitions,” Dorf said.

Should the court instead block the Louisiana law, it might be only a reprieve for the clinics and doctors. The court still would be able take up an appeal and uphold the law later on.

Still, full-scale review may not be likely given the court’s cautious approach in the months since the divisive Senate confirmation battle over Kavanaugh, the second high court nominee by President Donald Trump. Chief Justice John Roberts has tried to steer the court away from politically charged issues.

And the court’s liberals, though likely to be skeptical of the Louisiana ruling, probably won’t want to give their conservative colleagues a chance to set a nationwide precedent, Dorf said.

“In a way, I think that nobody is going to be happy about getting this case,” he said.

Overturning Roe

Democrats said during Kavanaugh’s confirmation hearing they were concerned he could vote to overturn the 1973 Roe v. Wade decision that legalized abortion. He didn’t rule on the abortion issue as an appellate judge, and he declined during his hearings to say if Roe was correctly decided or whether he’d vote to uphold it as a justice.

The court has kept its distance from abortion-related disputes during Kavanaugh’s first term. In December, the justices rejected appeals from two states seeking to cut off Medicaid payments to their local Planned Parenthood chapters.

The court also has deferred acting on a pending appeal by Indiana. That state is seeking to revive a law that would require clinics to bury or cremate fetal remains and would bar abortions based on the fetus’s race or gender or the risk of a genetic disorder such as Down syndrome.

The Louisiana case is June Medical Services v. Gee, 18A774.

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