With Louisiana Abortion Case, Brett Kavanaugh Confirmed Abortion Rights Advocates’ Fears
The Supreme Court issued a stay in a critical Louisiana abortion case on Thursday, offering some temporary relief in an ongoing legal battle that hints at potentially bleak implications for Roe v. Wade.
The Supreme Court voted 5-4 to issue a stay in the case of June Medical Services v. Gee, a case which argues that laws requiring abortion providers to have admitting privileges at a local hospital are unconstitutional. Justice Brett Kavanaugh issued the Court’s sole dissent on the decision — and in so doing, confirmed widespread fears that his addition to the SCOTUS bench could be detrimental to the ongoing protection of abortion rights.
June picks up on a Supreme Court decision in Texas in 2016, when SCOTUS ruled in favor of the Whole Woman’s Health abortion clinic in Whole Woman’s Health v. Hellerstedt. The ruling decreed that it was unconstitutional for the state to impose a law requiring hospital admitting privileges for abortion procedures. However, by the time the case was decided, more than half of the 40-plus abortion clinics in Texas that were unable to meet those terms had been forced to close down.
Laws that place medically unnecessary burdens specifically on abortion clinics are often called Targeted Regulations of Abortion Providers (TRAP) laws, and include restrictions such as requiring abortion providers to have admitting privileges at nearby hospitals and requiring abortion clinic structures to meet ambulatory hospital requirements. These demands have proven impossible to meet in many cases, forcing abortion clinics throughout states with TRAP laws to shutter, further cutting off patients from abortion access.
The Court’s decision this week prevents the Louisiana TRAP law from being applied until the justices decide whether or not they will hear the case. If SCOTUS decides not to hear the case, the law will go into effect once the stay expires. If the Court does opt to hear the case, the 2016 decision on Whole Woman’s Health — which deemed the Texas TRAP law unconstitutional — would seemingly provide the precedent for the court to reach a similar ruling. But Kavanaugh’s dissent suggests that the Texas decision would not necessarily be taken into consideration here.
The Supreme Court is the only option on the table to strike down the Louisiana TRAP law. But there is also a worrisome possibility that if the Court does opt to proceed with the case, it may vote against the interests of abortion providers.
UPDATE: The Supreme Court stepped in to protect our rights by blocking a clinic shutdown law just hours before taking effect in Louisiana. Next, we will ask it to hear our case and strike down the law for good. pic.twitter.com/4SSmmQ03zN
— Center for Reproductive Rights (@ReproRights) February 8, 2019
Louisiana currently has just three abortion clinics, two of which are likely to be shuttered if the law goes into effect.
The Center for Reproductive Rights (CRR), which is representing the plaintiffs in June, filed an emergency application for a stay from SCOTUS in January. It reads, in part, “The district court determined that Louisiana’s admitting privileges requirement would leave only one physician providing abortions in the entire state and that all-but-one clinic that provides abortion care would be forced to close.” CRR further argues that since one doctor can’t meet the entire need for abortion in the state, this TRAP law amounts to an undue burden on patients seeking abortion, and is therefore unconstitutional.
Abortion advocates are hoping that SCOTUS will decide in favor of abortion providers as it did in 2016, but the Court is decidedly likelier to flip against abortion rights now, following the addition of conservative judges Neil Gorsuch in 2017 and Brett Kavanaugh last year. This potential outcome seems especially possible in light of Kavanaugh’s dissent, in which he argued that before the law goes into effect, there’s no way to know if there would be an undue burden on patients seeking abortions — an out-and-out rejection of the precedent set in the 2016 Whole Woman’s Health decision.
President and CEO of CRR Nancy Northrup said in a press release Thursday, “The three clinics left in Louisiana can stay open while we ask the Supreme Court to hear our case. This should be an easy case — all that’s needed is a straightforward application of the court’s own precedent.” Unfortunately, the implications of the court’s own precedent seem uncertain in this matter.
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