SCOTUS Blocks Louisiana Abortion Law That Threatened to Shutter Clinics

by | February 8, 2019 AT 7:20 AM

By Elizabeth Crisp

The U.S. Supreme Court has stopped a law that threatened to shutter Louisiana abortion clinics from taking effect this week, but the fight over whether abortion providers should be required to have admitting privileges at local hospitals is likely far from over.

In a brief late-night message Thursday, the U.S. Supreme Court ordered the admitting privileges law be put on hold pending a "timely filing" of a petition for the high court to act on the law itself. It would immediately expire if that doesn't happen. If a timely petition is filed, then the stay remains in effect until the high court rules on the law.

The emergency stay was issued on a 5-4 vote, with Chief Justice John Roberts voting with the more liberal wing of the court -- Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Justice Brett Kavanaugh, the newest member of the court who faced a rocky confirmation after President Donald Trump nominated him to replace the retiring Anthony Kennedy, wrote a dissent to the ruling that was more than 10 times longer than the majority remarks.

In it, he argued doctors would have a 45-day period to attempt to obtain admitting privileges, as required by the law, and if unsuccessful the court could revisit the issue.

"If the doctors, after good-faith efforts during the 45-day period, cannot obtain admitting privileges, then the Fifth Circuit's factual predictions, which were made in the context of a pre-enforcement facial challenge, could turn out to be inaccurate as applied," Kavanaugh wrote.

Only one of the state's three abortion clinics currently would meet the admitting privileges requirement, and critics of the 2014 law argued that it would shutter the other two, effectively crippling access to abortions for thousands of Louisiana women.

Supporters, largely those who generally oppose abortion, argued that it was intended to make abortion safer for women.

"Abortion has known medical risks, and the women of this state who are often coerced into abortion deserve to have the same standard of care required for other surgical procedures," state Rep. Katrina Jackson, a Monroe Democrat who authored the legislation, said in a statement.

Act 620 is being challenged in court by a pair of Louisiana doctors, backed by the Center for Reproductive Rights, who say it's too onerous.

Because the emergency hold was reviewed by the full court, it is widely being viewed as the first major test of how President Donald Trump's appointees to the U.S. Supreme Court could ultimately impact abortion laws across the country. Justice Neil Gorsuch and Kavanaugh, both Trump appointees, were not on the bench when a similar law in Texas was ruled unconstitutional nearly three years ago.

Both voted against the petition for an emergency stay.

The Texas law that, like Louisiana's, sought to require admitting privileges, was rejected on a 5-3 Supreme Court vote in 2016.

Attorney General Jeff Landry, a Republican, has been fighting for the law to take effect. He vowed to continue after the stay was granted Thursday night.

"In 2014, our duly elected legislators almost unanimously passed Act 620 to require doctors who perform abortions to have admitting privileges at nearby hospitals," he said in a statement. "Unfortunately, the Supreme Court today put enforcement of this pro-woman law on hold for the time being. We will not waver in defense of our state's pro-woman and pro-life laws; and we will continue to do all that we legally can to protect Louisiana women and the unborn."

The crux of the argument against the law has been that it's modeled after the Texas law that the high court already struck down. But the 5th Circuit majority that agreed to uphold Act 620, ruled that "unlike in Texas, (Louisiana's law) does not impose a substantial burden on a large fraction of women" and would affect, at most, 30 percent of Louisiana women.

Louisiana, which tends to be among states with the toughest restrictions on abortion access, has three remaining abortion clinics -- one each in Baton Rouge, New Orleans and Shreveport. There were five when Act 620 passed the Louisiana Legislature in 2014.

"The Supreme Court has stepped in under the wire to protect the rights of Louisiana women," said Nancy Northup, president and CEO of the Center for Reproductive Rights. "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."

(c)2019 The Advocate, Baton Rouge, La.