Supreme Court Blocks Louisiana from Enforcing Restrictive Abortion Law

February 8, 2019

By Greg Stohr

WASHINGTON — A divided U.S. Supreme Court blocked Louisiana from requiring abortion doctors to get admitting privileges at a local hospital, giving a reprieve to clinics as the justices consider whether to take up an appeal.

Over four dissents, the justices Thursday put on hold a federal appeals court decision that upheld the Louisiana law, which is virtually identical to a Texas measure the Supreme Court struck down in 2016.

The court has become more conservative since then, with Justice Brett Kavanaugh replacing the retired Anthony Kennedy. Kavanaugh joined Justices Clarence Thomas, Samuel Alito and Neil Gorsuch in saying they would have let the law take effect.

Chief Justice John Roberts joined the court’s liberals in the majority, giving no explanation.

Although Kavanaugh said he would let the law go into effect, he said that wouldn’t have changed the “status quo.” He said doctors could have performed abortions during a 45-day period in which the state would determine who had the necessary privileges. Kavanaugh said new challenges could have been filed if doctors couldn’t get privileges during that period.

“During the 45-day transition period, both the doctors and the relevant hospitals could act expeditiously and in good faith to reach a definitive conclusion about whether those three doctors can obtain admitting privileges,” he wrote.

Opponents say the law would leave the state with only one clinic and a single abortion doctor because no one will risk the civil and criminal penalties the measure imposes for noncompliance.

“One doctor at one clinic cannot possibly meet the needs of approximately 10,000 women who seek abortion services in Louisiana each year,” two unidentified doctors and the Hope Medical Group for Women, a Shreveport clinic, argued in court papers.

The state says no clinic would have to close immediately and there would be a lengthy process to determine compliance.

Louisiana told the Supreme Court it will put in place an “administrative process characterized by mutual communication among doctors, hospitals, and the state agency, with administrative remedies in the event of adverse licensing actions — not the abrupt descent into chaos plaintiffs foresee.”

Louisiana’s law, enacted in 2014, requires doctors to have admitting privileges at a hospital within 30 miles of the abortion facility. The measure was in effect for a brief period in 2016.

The decision to block the law suggests the court is likely to hear an appeal in the case, probably during the nine-month term that starts in October.

The 2016 Supreme Court ruling in the Texas case appeared at the time to be the biggest abortion-rights victory in a generation. Kennedy sided with the liberals in the 5-3 ruling, which also voided requirements that clinics meet hospital-like surgical standards.

The Supreme Court said the Texas law provided “few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an undue burden on their constitutional right to do so.”

Kennedy has since retired and been replaced by Kavanaugh, President Donald Trump’s second Supreme Court nominee.

In upholding the Louisiana law on a 2-1 vote, a New Orleans-based appeals court said the impact wasn’t nearly as great as in Texas. The majority said the law itself wasn’t forcing any clinics to close, and the panel blamed doctors for not making good-faith efforts to get the required privileges.

“The vast majority largely sat on their hands, assuming that they would not qualify,” Judge Jerry Smith wrote for the majority.

The justices put the ruling on hold last week while they considered the request for a longer halt. The clinic and doctors say they will file an appeal, which the court could take up during the nine-month term that starts in October.

Democrats said during Kavanaugh’s confirmation hearing they were concerned he could vote to overturn the 1973 Roe v. Wade decision, which legalized abortion nationwide. He didn’t rule on the abortion issue as an appellate judge, and he declined during his hearings to say whether Roe was correctly decided or whether he’d vote to uphold it as a justice.

The court has kept its distance from abortion-related disputes during Kavanaugh’s first term. In December the justices rejected appeals from two states seeking to cut off Medicaid payments to their local Planned Parenthood chapters.

The court also has deferred acting on a pending appeal by Indiana. That state is seeking to revive a law that would require clinics to bury or cremate fetal remains and would bar abortions based on the fetus’s race or gender or the risk of a genetic disorder such as Down syndrome.

———

©2019 Bloomberg News

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