On Thursday night, the Supreme Court – by a 5-4 margin – blocked a Louisiana law that could have limited access to abortions in the state from going into effect. It was a victory, although perhaps a temporary one, for abortion rights supporters. It was also the first major abortion-related decision of the Court with its new conservative majority – following the appointment of Justice Brett Kavanaugh to the bench last year.
So what is the future of the Louisiana case? And what does it mean for the broader conversation about the future of legal abortion in this country? I reached to Ariane de Vogue, a Supreme Court and legal reporter, for answers.
Our conversation, conducted via email and lightly edited for flow, is below.
Cillizza: Let’s start simple: How did this case get to the Supreme Court? How long has this been caught up in the courts?
De Vogue: This law – called the Louisiana’s Unsafe Abortion Protection Act – was passed back in 2014. But it has never gone into effect. It requires a provider to have admitting privileges at a hospital within 30 miles of where the abortion is provided. Louisiana said it was necessary in case of complications and to make sure that the providers are competent. Challengers raced to court and said the law was a veiled attempt to block abortions. They said that it was not medically necessary, abortion is a safe procedure, and in fact the law would leave only one provider in the state.
The Center for Reproductive Rights – which represents patients, doctors and clinics – managed to temporarily block the law pending appeal. And then, in 2017, the challengers won big when a district court judge officially enjoined the law. Over 116 pages, Judge John deGravelles, of the US District Court for the Middle District of Louisiana, pointed to the only doctor in the state who would be able to get those admitting privileges and continue the practice.
Here’s what the judge said: “Even working an implausible seven-day week, it would be impossible for him to expand his practice to meet even half of the state’s need for abortion services.” He estimated that about 10,000 women seek abortions each year in the state.
Last September, however, a 2-1 panel of the Fifth Circuit Court of Appeals said that deGravelles had gotten it wrong. The appeals court was deeply skeptical that only one provider would be able to comply with the requirements of the law. The court went as far as suggesting that other providers had “sat on their hands” and just assumed they wouldn’t qualify for the admitting privileges. When one judge on the Fifth Circuit asked for a vote to see if the full court could review the three-judge panel opinion, the request was shot down in a 9-6 vote.
The Center for Reproductive Rights asked the Supreme Court to step in and put the Fifth Circuit opinion on hold, while the Center prepared its appeal.
A side note: the Fifth Circuit has always been conservative, but President Trump has added five more judges. Four of the five (one was recused) voted to allow the opinion to stand. That’s an early indication of Trump’s promise to change the judicial landscape.
Cillizza: This Louisiana law is being compared to a similar one in Texas passed a few years back. Fair comparison? Are there any significant differences?
De Vogue: Understanding the Texas case is key to understanding what happened [Thursday] night. It was only in 2016 that the court struck down an identical law out of Texas in a case known as Whole Woman’s Health. And, as he often did, Justice Anthony Kennedy provided the key vote siding with the liberals. John Roberts was in dissent.
Flash forward and a lot has changed. Kennedy is gone and President Trump has added two justices: Brett Kavanaugh, and Neil Gorsuch. In upholding the law, the Fifth Circuit did not ignore the Texas case. It distinguished it. It said, among other things, that while the laws were identical, the states are different. In Louisiana, for instance, it’s easier to obtain admitting privileges, the court held. The dissenters in the Fifth Circuit weren’t buying it. Here’s what one said: “I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse” the opinion Judge Stephen A. Higginson said, “The majority would not,” he continued, “and I respectfully suggest that the dissenters might not either.”
Cillizza: Chief Justice John Roberts voted with the four liberals on the court to block implementation of the law. What, if anything, should we read into that?
De Vogue: Does Roberts’ vote with the liberals mean that he has had an incredible change of heart from 2016? Not likely. Roberts was serving as an institutionalist [Thursday] night. If the Court were to deny the stay request and allow the Louisiana law to go into effect, without any explanation distinguishing it from the Texas law, the Court’s order would have drawn swift and biting criticism, especially from the liberals on the bench. This way, Roberts’ vote keeps the court out of the political fray, for now. Kavanaugh’s confirmation hearings were fiery enough, Roberts has worked to keep his first term under the radar while the political branches explode in rancor.
But when this court looks at the merits of this case, Roberts could very well side with the conservatives.
Cillizza: Has the court agreed to take up any abortion cases in the coming term? If so, which ones. If not, why not?
De Vogue: The court is considering whether to take up an Indiana law – signed by then Governor Mike Pence – that requires fetal remains to be disposed of by burial or cremation. A separate provision says that a state can prohibit abortion that is solely motivated by the race, sex or disability of the fetus. Lower courts have blocked the law. If the justices were to step in to hear both provisions it would fulfill the fears of liberals who say the newly solidified conservative majority on this court is poised to gut Roe v. Wade.
For their part, opponents of abortion are now boldly motivated to push for strict laws across the country and to bring them quickly to this Court.
Cillizza: Finish this sentence: “The biggest thing to watch as it relates to SCOTUS and abortion over the next few years is ___________.” Now, explain.
De Vogue: “The biggest thing to watch as it relates to SCOTUS and abortion over the next few years is not whether they will outright overturn Roe.” It will be how they work to gut it. I don’t belong to the school of thought that the justices will move to remove Roe from the books. They don’t need to. They can chip away at its holding. That is the goal of many laws percolating across the country concerning issues such as admitting privileges, fetal heartbeat, and fetal burial.