Defenders of the Supreme Court’s illegitimate Roe/Casey regime are thundering over the prospect that the Court might deny an “emergency application” in which abortion providers seek to block a Louisiana law from taking effect. But that is exactly what the Court should do.
Last September, a divided panel of the Fifth Circuit, in June Medical Services v. Gee, ruled that a Louisiana law that requires abortion providers to have admitting privileges at a hospital located within thirty miles of the clinic where they do abortions complies with the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt (“WWH”). Specifically, the majority (written by Judge Jerry Smith and joined by Judge Edith Clement) determined that “the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH” and that the Louisiana law “does not impose a substantial burden on a large fraction of women under WWH and other controlling Supreme Court authority.” Judge Patrick Higginbotham dissented.
When the abortion providers sought en banc review, the Fifth Circuit denied their request by a vote of nine to six.
In order to grant the stay request, the Supreme Court would need to determine (among other things) that there is “a significant possibility of reversal of the lower court’s decision.” The state’s brief in opposition explains why there is no such possibility even if the Court were to adhere to WWF.
But there is no reason for the Court, in the context of this stay request, to get into the weeds of the competing views of Fifth Circuit judges over how WWH applies to the Louisiana law. The justices, unlike the Fifth Circuit judges, are not required to regard WWH as sound precedent. Nor should they.
WWH, issued months after Justice Scalia’s death, was decided by a 5-3 margin. In his dissent (joined by the Chief Justice and Justice Thomas), Justice Alito vigorously disagreed that, under the Court’s precedents governing facial challenges to state abortion laws, the Texas law imposed an “undue burden” on women seeking abortion. (See dissent at pp. 24-37.) He further disputed that the abortion providers would, in any event, be entitled to a statewide injunction against the law. (See dissent at 37-43.)
For the reasons they embraced in dissent in WWH, and without needing to address at this point the broader illegitimacy of the Roe/Casey regime, the Chief Justice, Justice Thomas, and Justice Alito should not regard WWH as precedent that they should adopt and apply. If Justice Gorsuch and Justice Kavanaugh reach the same position—as they should—that would mean that five justices regard WWH as unsound and unworthy of being extended to another state’s law. The positions of those five justices would mean that there is no significant possibility that the Fifth Circuit would be reversed.
(There are additional reasons the Court should deny the stay application, as the state’s brief in opposition spells out.)