On Thursday night, the Supreme Court blocked a stringent Louisiana abortion law by a 5–4 vote, with Chief Justice John Roberts joining the liberals to keep the measure on hold. Roberts’ vote is surprising, but not a total shock: The Louisiana statute is a direct violation of the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, and until the court overturns that decision, the Louisiana law cannot take effect. To Roberts, this precedent matters. To Justice Brett Kavanaugh, it does not. Kavanaugh so disagreed with the majority that he wrote a dissent explaining why the Louisiana law should be allowed to move forward—an opinion that should not be taken as anything less than a declaration of war on Roe v. Wade.
Thursday’s case, June Medical Services v. Gee, should be an easy one. It is a challenge to a Louisiana law that is nearly identical to the Texas statute invalidated in Whole Woman’s Health. Louisiana, like Texas, compelled its abortion providers to obtain surgical privileges at a hospital within 30 miles of their clinic. These privileges are often difficult if not impossible to obtain—hospitals can, and do, deny them because they oppose abortion. More importantly, they provide absolutely no medical benefit to women, as the Supreme Court ruled in Whole Woman’s Health. Because these measures impose a substantial burden on abortion providers (and their patients) while providing no benefit to women, the court found them to be unconstitutional.
Then, in 2018, Justice Anthony Kennedy, who cast the fifth vote in Whole Woman’s Health, retired. He was replaced by Kavanaugh, who has a history of upholding abortion restrictions while claiming fidelity to Roe. In anticipation of Kavanaugh refusing to apply abortion precedents, the 5th U.S. Circuit Court of Appeals refused to enforce Whole Woman’s Health. Instead, it asserted (falsely) that the Louisiana law does provide some benefit to women (it does not) and that it doesn’t impose a serious burden. (It does: The law would likely shutter two of Louisiana’s three abortion clinics.) Clearly, the conservative 5th Circuit thought it could overturn Whole Woman’s Health on its own, and trust the Supreme Court to play along.
In the lead-up to this week’s decision, Roberts’ vote was an open question. I wrote last week that his “vote on this emergency appeal will reveal how aggressively the chief justice wants to attack abortion access—and whether he’s willing to sacrifice the rule of law to nullify Roe as fast as possible.” On Thursday, we got our answer. While the chief justice dissented from Whole Woman’s Health, he does not seem disposed to let a lower court simply ignore it.
Kavanaugh feels quite differently. In his dissent, he focused on the fact that, according to the 5th Circuit, Louisiana’s abortion providers did not try hard enough to obtain surgical privileges. That should not matter, because Whole Woman’s Health says the requirement that doctors get privileges in order to perform abortions is unconstitutional, as it bestows no benefit onto patients. Kavanaugh, though, disregarded that conclusion and wrote that the doctors should work harder to get these pointless privileges.
-- The most astounding aspect of Kavanaugh’s dissent is its credulous belief in Louisiana’s ostensible benevolence toward abortion clinics. --
The most astounding aspect of Kavanaugh’s dissent is its credulous belief in Louisiana’s ostensible benevolence toward abortion clinics. He noted that, if the law takes effect, “there will be a 45-day regulatory transition” before it is applied. He also says that Louisiana promised not to “move aggressively to enforce the challenged law” during this period. Kavanaugh accepted the state’s pinky-promise not to swiftly close the clinics—even though they have spent months fighting for the ability to do precisely that. At the end of 45 days, the justice wrote, if the doctors still can’t obtain the privileges, they can go back to district court and start the fight anew.
This is classic Kavanaugh. On the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh had a penchant for pretending to apply Roe while finding arbitrary reasons to uphold abortion restrictions. Kavanaugh let the Trump administration prevent an undocumented minor from terminating her pregnancy, on the laughable theory that she could find a sponsor who would remove her from government custody, where she could reassert control over her body. It was a pseudo-moderate procedural solution that had the effect of denying the undocumented minor abortion access altogether. Here, Kavanaugh made the same play, pretending like he’d found a reasonable middle ground that, in reality, serves to rubber-stamp unconstitutional abortion laws.
No one should mistake Kavanaugh’s dissent as a genuine compromise. There will always be a way to uphold an abortion law while insisting that somehow, someday, women might still find a legal way to terminate their pregnancies. This kind of maneuvering is alarming, as it could allow the Supreme Court to chip away at Roe without the public paying much attention. At least for now, Roberts is inclined to adhere to Whole Woman’s Health, perhaps out of a concern for institutional legitimacy. But his junior colleague has made it quite plain that he is gunning for Roe. Don’t believe the lip service Kavanaugh paid to precedent on Thursday. He is ready and willing to let states regulate abortion out of existence.
Supreme Court bypasses main issue in ruling on Indiana abortion law
"The Supreme Court’s Next Abortion Chapter "How I Lost Faith in the “Pro-Life” Movement .. bits .. Without Birth Control: 6 zygotes will “die” With Birth Control: 2 zygotes will “die”" "
By ALICE MIRANDA OLLSTEIN and RACHANA PRADHAN
Demonstrators rally earlier this month in front of the Supreme Court to protest restrictive abortion legislation passed in Alabama. | Tasos Katopodis/Getty Images | Tasos Katopodis/Getty Images
05/28/2019 10:10 AM EDT
Updated 05/28/2019 07:16 PM EDT
The Supreme Court on Tuesday blocked an Indiana law barring abortions based on a fetus' sex, race or disability, while allowing a separate state measure requiring fetal remains to be buried or cremated to take effect.
The justices declined to review a lower court's decision overturning a law restricting when and why an abortion could be performed. Vice President Mike Pence signed the measure into law in 2016 when he was Indiana governor, and it was blocked by the 7th Circuit Court of Appeals last year.
That case is the latest abortion challenge the Supreme Court's new conservative majority has passed up. However, it doesn’t indicate whether the court will eventually take up a challenge to Roe v. Wade, as a spate of conservative states including Alabama, Georgia and Missouri approve laws meant to directly challenge the 1973 ruling legalizing abortion nationwide.
In an unsigned opinion, the justices wrote that the state has a "legitimate interest" in the disposal of fetal remains. They reversed the 7th Circuit decision blocking that provision, reinstating Indiana's measure without first holding a hearing.
Indiana argued the prevalence of prenatal screening has led many women to opt for abortion when fetal abnormalities like Down syndrome are detected. Supporters of abortion rights said the law was unconstitutionally intrusive, defying Supreme Court precedent protecting a woman's right for an abortion until the fetus is viable outside of the womb, generally considered to be around 24 weeks.
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"A woman, not the legislature, gets to decide whether an abortion is the right decision for her and her family," said Ken Falk, legal director with the ACLU of Indiana, who represented Planned Parenthood of Indiana and Kentucky in the case.
A spokesperson for Pence, while commending the court's decision over fetal remains, said the administration remained "hopeful" that the high court would one day take up a legal challenge addressing state bans on abortion that are based on sex, race or disability.
"Countries across the globe prohibit selective abortion — and the United States should do the same,” Alyssa Farah, press secretary for the vice president, said in a statement.
Although Justice Clarence Thomas agreed with the court's decision to refuse the case, he wrote in a fiery concurring opinion that the justices may eventually consider the constitutionality of similar laws.
"Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s," he wrote. "But because further percolation may assist our review of this issue of first impression, I join the Court in declining to take up the issue now."
Justice Sonia Sotomayor said she would have declined to take up both parts of the Indiana case. Justice Ruth Bader Ginsburg, in a dissenting opinion, disagreed with the majority's ruling on the fetal remains question.
The Supreme Court internally wrangled over the Indiana case for an unusually long time. The case, Box v. Planned Parenthood of Indiana and Kentucky, was first listed on the justices' docket in January.
Reaction to the court's decision from groups opposing abortion was mixed, given the split decision over different parts of the Indiana law.
The anti-abortion group Susan B. Anthony List and its research arm Charlotte Lozier Institute thanked the court "for affirming today that nothing in the Constitution or precedents of this Court prohibits states from requiring that the remains of human children be treated better than medical waste." However, they said it was "gravely disappointing" that the court did not take up the ban on abortion based on sex, race or disability.
Abortion rights advocates criticized the court for upholding the fetal remains provision.
“Today the Court let another unwarranted restriction on abortion stand," Jennifer Dalven, director of the ACLU Reproductive Freedom Project, said in a statement. "While this ruling is limited, the law is part of a larger trend of state laws designed to stigmatize and drive abortion care out of reach."
The high court has declined to hear two other abortion challenges in the current term, the first since Justice Brett Kavanaugh joined the bench. A divided Supreme Court in February temporarily blocked a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. However, the court may take up the Louisiana case for a full review later this year.
Justices in December declined abortion rights case concerning whether states can cut Planned Parenthood and other abortion providers from their Medicaid programs.
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