We are off to the legal races.
A boring, low-stress Supreme Court term just got substantially more interesting. Within two short days, we may learn a great deal about Justice Kavanaugh’s approach to abortion rights and about the willingness of the Court to roll back recent, abortion-friendly jurisprudence.
Here’s what happened. Last fall, a three-judge panel of the Fifth Circuit unexpectedly upheld Louisiana’s so-called “admitting privileges” law. The state requires that doctors performing abortions “[h]ave active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.”
I say “unexpectedly” because abortion-rights advocates believed that the Louisiana law was clearly invalid under Whole Women’s Health v. Hellerstedt, a 5–3 2016 decision where Justice Kennedy joined with the court’s four progressive justices (the decision came after Justice Scalia’s death) to strike down a Texas statute that also required abortion doctors to have admitting privileges at hospitals located within 30 miles of the abortion clinic. The majority ruled that the admitting-privileges requirement imposed an “undue burden on a woman’s right to choose.” Under the facts of the case, the Court found that the law placed a “substantial obstacle” in front of women seeking an abortion while finding “no significant health-related problem for the new law to cure.”
Louisiana argued that its facts were substantially different from Whole Women’s Health, and while the Fifth Circuit panel agreed, noting — for example — that the Texas law would have forced all but eight out of 40 abortion clinics to close yet only one Louisiana abortion doctor was unable to obtain admitting privileges, the smart money was betting that the Fifth Circuit would grant en banc review and strike down the Louisiana law.
That didn’t happen. On January 18, the Fifth Circuit denied en banc review. On Friday, January 25, a single Fifth Circuit judge denied the plaintiff’s request for a stay of enforcement pending their effort to seek Supreme Court review, declaring that the law would go in effect in seven days — by February 1.
And with that, we were off to the legal races. The plaintiffs — an abortion clinic and two doctors — filed with the Supreme Court an application for an emergency stay to block enforcement of the law. The state responded, and on Friday Justice Alito wrote a brief order granting the stay through this Thursday, February 7. The order gave no hint of the Court’s ultimate ruling. It granted the stay merely because “the filings regarding the application for a stay in this matter were not completed until earlier today and the Justices need time to review these filings.”
So, what gives? The case is important, but all sides should temper expectations. It’s unlikely that the court would choose an order in response to an application for an emergency stay to announce sweeping changes in abortion jurisprudence. The state of Louisiana’s legal argument is quite limited. It’s not asking the court to upset existing precedent. It’s arguing that Louisiana’s statute complies with the “undue burden” framework.
In other words, don’t look for Roe v. Wade or Planned Parenthood v. Casey to fall on Thursday. But that doesn’t mean that the Court’s order won’t be significant. Every Supreme Court order regarding abortion is worth watching, and some potential rulings would be considerably more significant than others. So let’s break down the possibilities.
First, the court could grant the stay. If it does, that’s quite frankly ominous news for the pro-life movement. After all, when the court grants an emergency stay (an extraordinary remedy), it’s declaring that there’s a “reasonable probability” that at least four members of the Court view the underlying issue “sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction,” and there exists a “significant possibility of reversal of the lower court’s decision.” (Emphasis added.)
To put this in plain English, if the Court grants the stay, it’s sending a strong signal not only that it’s likely to continue to apply abortion-friendly precedents like Whole Women’s Health, but that it will apply the more expansive reading of the case that the Louisiana plaintiffs urge.
If the Court grants the stay, pro-life advocates should be gravely concerned. To paraphrase The Who’s classic anthem, “Won’t Get Fooled Again,” we’d meet the new court, and it would look a lot like the old court.
Second, the court could deny the stay and rely primarily on the factual distinctions between Louisiana’s case and Whole Women’s Health. This would represent a modest pro-life win, but a win nonetheless. To the extent that one would read any tea leaves from the court’s decision, one could surmise that in the short term at least, the Court is going to chip away at abortion jurisprudence by reading existing abortion-protective case law more narrowly, confining cases to their precise facts.
Third, the court could deny the stay and explicitly cast doubt on the viability of the Whole Women’s Health precedent itself. After all, that case was decided without Scalia and with Justice Kennedy casting the swing vote. It’s a recent decision, and it would be fairly easy to begin to limit the reach of the “undue burden” analysis by taking aim at a decision reached by a partial court.
Fourth, well, shall we even speak of option four? Shall we even consider the possibility that the Court would use a vehicle like a ruling on an emergency stay to raise questions about Casey itself? Or Roe? No. No, we shall not. A move that bold would be completely out of character for the Roberts court. After all, Louisiana’s not reaching for the moon. Louisiana’s only trying to keep its law alive.
The most realistic scenario for a more pro-life court is option two. The Court will agree with Louisiana’s limited arguments and go no farther. The Louisiana law will stand, but so will Whole Women’s Health. It’s a ruling that wouldn’t tell us much about the Court’s future abortion jurisprudence, but it’s a ruling Justice Kennedy almost certainly wouldn’t make. If the Court is to truly make a more originalist turn on abortion, it may well take its first small step on Thursday.