Kavanaugh Shows Contempt For the Rule of Law in Louisiana Abortion Case

Blanche Robertson
February 10, 2019

A divided Supreme Court has stopped Louisiana from enforcing new regulations on abortion clinics in a test of the conservative court's views on abortion rights.

The Supreme Court has blocked from taking effect a Louisiana law requiring abortion doctors to hold admitting privileges at hospitals near abortion businesses. Chief Justice John Roberts Jr. sided with the four Democratic-appointed justices; the other Republican-appointed justices, including Neil Gorsuch and Brett M. Kavanaugh, voted to uphold the law. Lawmakers have defended the law, saying that one abortionist has already obtained hospital admitting privileges.

The Center for Reproductive Rights, an abortion rights group that represents the challengers, said the law could lead to the closure of two of the three abortion clinics operating in Louisiana, a state of more than 4.6 million people.

In 2017, the law was struck down by the U.S. District Court in Baton Rouge, La., but that decision was later reversed by the U.S. Court of Appeals for the 5th Circuit in New Orleans. In rejecting it, the Court said that the law was not medically justified and constituted an "undue burden" on abortion access. Many were created to present a direct challenge to Roe v Wade, the 1973 Supreme Court ruling that established a nationwide right to abortion. "By voting to allow the Louisiana law to go into effect, four justices gave the okay to states and lower courts to limit Roe by whatever means necessary".

Kavanaugh wrote a dissent that said he would have let the law go into effect because the appeals court had said "the new law would not affect the availability of abortions from. the four doctors who now perform abortions at Louisiana's three abortion clinics".

Judge Brett Kavanaugh at the White House after President Donald Trump announced Kavanaugh's nomination to the Supreme Court on July 9, 2018.

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It seems clear at this point that there are five justices - a majority - that are willing to entertain allowing states to impose new restrictions on abortion rights. "By contrast, if the three doctors can not obtain admitting privileges, then one or two of the three clinics would not be able to continue providing abortions". "I would be very surprised if he regards the Court's 2016 decision in Whole Woman's Health v. Hellerstedt (from which he dissented) as sound precedent". Susan Collins (R-ME) that he would never undermine abortion rights, dissented, arguing the law should be allowed to take effect.

"Louisiana legislators on both sides of the aisle enacted this law to protect women from the abortion lobby which repeatedly puts profit over health and safety standards, and has proven incapable of policing itself", she said in a statement. If that proved insurmountable, the challengers could come back to the court, he said.

He added that if they cannot, "then even [Louisiana] acknowledges that the law as applied might be deemed to impose an undue burden".

"Unfortunately, the supreme court today put enforcement of this pro-woman law on hold for the time being", said Landry.

"If we denied the stay, that question could be readily and quickly answered without disturbing the status quo or causing harm to the parties or the affected women, and without this court's further involvement at this time", Kavanaugh said. Increasing that burden is what conservative states have been doing for years, requiring things like waiting periods and forced ultrasounds, or imposing so many unnecessary regulations on providers that nearly no one can meet them, leaving states with only a tiny number of providers. In 2006, he voted to uphold a ban on partial-birth abortion. The act was scheduled to take effect on Friday. But June Medical Services, LLC v. Gee was just that rare case.

The high court has now agreed to grant that pause in the litigation, but it could still refuse to hear the case and leave the lower court decision in place.

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