By: Rachel Richman
On February 7, 2019 the Supreme Court granted a stay of a Louisiana law, which would restrict abortion access, pending the timely filing of a writ of certiorari.[1]The law, Louisiana’s Unsafe Abortion Protection Act, requires clinics providing abortions to have admitting privileges in a hospital within 30 miles of the clinic.[2]The petitioners are abortion providers, who requested a stay of the law until they could file a petitioner for review.[3]If this law were to take effect, the petitioner’s argue that only one clinic in the state will be able to perform abortions.[4] The law was enacted in 2014, but has not yet gone into effect.[5]The District Court struck down the law stating it would “cripple women’s ability to have an abortion.”[6]However, the 5thCircuit reversed the holding. Chief Justice Roberts joined the four liberals on the court preventing the Louisiana law from taking effect until after the petitioners have an opportunity to file a writ of certiorari.[7]
Petitioners argue the Louisiana Unsafe Abortion Protection Act is very similar to a Texas law that the Supreme Court struck down in 2016 in Whole Women’s Health v. Hederstadt.[8]In Hederstadt, a Texas law required that doctor’s performing abortions to have access to a hospital within 30 miles or comply with the standard of ambulatory surgical centers.[9]The Court struck down the law because it placed a substantial obstacle in the path of women seeking to obtain an abortion, and therefore was unlawful under the precedent Planned Parenthood v. Casey.[10]If the Supreme Court grants certiorari, the issue will be whether the Louisiana law placed a substantial obstacle in the path of women seeking an abortion; and based on Hederstadt, the court should answer that question in the affirmative and strike down the law. However, Louisiana argues that the law will not have a similar effect to Hederstadt, and that petitioners are exaggerating the effect of the law.[11]Further, they argue the law would only shut down one of the six abortion providers in the state.[12]
With five conservative justices now holding a majority on the court, many Americans are anxious about whether the Supreme Court will uphold Roe v. Wade and its progeny, such as Caseyand Hederstadt. While the court has not yet granted cert. for this case, their decision to bar Louisiana from enforcing this law until they can decide on the merits, indicates the court’s apprehension to turn over precedent. Chief Justice Roberts joined the liberal justices in this decision, while the four conservative justices, Justice Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, all would have allowed the law to take effect and denied the stay.[13] This decision hints that Chief Justice Roberts is more concerned with preserving the Court’s institutional integrity by following precedent, than allowing his personal politics to influence how he votes.[14]This also indicates he may continue to side with the liberal justices in future abortion cases.[15] Justice Kavanaugh wrote a dissent to the stay.[16]He argued there was no undue burden on women seeking an abortion, because the evidence on whether doctors would obtain admitting privileges was unclear.[17]However, no further decisions will be made about the Louisiana Unsafe Abortion Protection Act until the petitioners file a writ of certiorari.
[1]June Medical Services v. Gee, 586 U. S. ____ (2019).
[2]Chris Cillizza, What the Louisiana Abortion Ruling tells us About the Fate of Roe v. Wade, CNN (Feb. 8, 2018 12:17 P.M.)
[3]Amy Howe, Justices grant stay, block Louisiana abortion law from going into effect, Scotus Blog (Feb. 7, 2019 10:46 PM).
[8]Robert Barnes, Supreme Court on 5-4 vote blocks restrictive Louisiana abortion law, The Washington Post (Feb. 7, 2019).
[9]Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2296 (2016).
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