Protesters for and against abortion rallied March 2 outside the Supreme Court as the justices heard argument in Whole Woman’s Health v. Hellerstedt . (Photo: Diego M. Radzinschi / ALM)

A sharply divided U.S. Supreme Court on Thursday night agreed to temporarily block a Louisiana abortion clinic law that opponents claimed was nearly identical to a Texas law the justices struck down in 2016.

In the case June Medical Services v. Gee, the high court approved an emergency request to stay a ruling by the U.S. Court of Appeals for the Fifth Circuit, which upheld the law’s restrictions on abortion providers. The law was set to take effect Feb. 4, but the justices put it on hold through Thursday to review the arguments.

Chief Justice John Roberts Jr. joined the court’s four liberal justices in staying the Louisiana law. Five votes are required to grant a stay. Justices Brett Kavanaugh, Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch would have allowed the law to take effect. Kavanaugh separately wrote a dissenting opinion.

“In order to resolve the factual uncertainties presented in the stay application about the three doctors’ ability to obtain admitting privileges, I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period,” Kavanaugh wrote.

The case was being closely watched for an indication of where the Roberts court, with its newest members, Kavanaugh and Gorsuch, might be headed on the right to abortion, which has been repeatedly reaffirmed since the 1973 landmark decision in Roe v. Wade.

Allowing the Louisiana law to take effect would have encouraged lower courts to approve similar state abortion restrictions and further embolden abortion opponents to press for additional restrictions at the state and federal levels.

“What is at stake in this case, however, is not just the constitutional rights of Louisiana women to abortion access,” counsel for June Medical Services, Julie Rikelman of the Center for Reproductive Rights, said in her brief seeking the stay. “The Fifth Circuit panel majority’s decision undermines the rule of law by flouting binding precedent from this Court. Such a ruling has implications for the country and the judicial system as a whole.”

Louisiana’s Unsafe Abortion Protection Act would require physicians performing abortions to have hospital admitting privileges within 30 miles of the procedure. Challengers to the law argued that enforcement would leave one doctor and one clinic available to perform abortions for approximately 10,000 Louisiana women who seek the procedure each year.

The case drew parallels to the Texas dispute in Whole Woman’s Health v. Hellerstedt. In that case, the Supreme Court, voting 5-3 in 2016, struck down an identical admitting privileges requirement in a Texas law as well as other restrictions, after finding the law provided no medical or safety benefit to women. Justice Stephen Breyer wrote the majority opinion.

Justice Anthony Kennedy provided the critical fifth vote in that decision. Kavanaugh, who is more conservative than Kennedy, succeeded Kennedy after his retirement in July.

“I am unconvinced that any Justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion. The majority would not, and I respectfully suggest that the dissenters might not either,” Fifth Circuit Judge Stephen Higginson wrote in a dissent in January.

After the high court’s Whole Woman’s Health decision, courts in Oklahoma and Mississippi blocked admitting privileges requirements in those states, and Tennessee and Alabama chose not to enforce similar laws.

The Center for Reproductive Rights, on behalf of three women’s health centers, doctors and their patients, originally filed suit in 2014. After a six-day trial, a federal district court concluded the law imposed an unconstitutional undue burden on the abortion right and issued a preliminary injunction preventing its enforcement.

In September, a 2-1 panel of the Fifth Circuit reversed the trial judge, and en banc review of the panel decision was denied by a 9-6 vote.

In the emergency request to the high court, the center’s Rikelman argued that allowing the admitting privileges requirement to take effect would “cripple abortion access” in the state. “By contrast, Louisiana will suffer no harm from a stay of the [Fifth Circuit] mandate.”

Rikelman said the Fifth Circuit ruling directly conflicted with the Whole Woman’s Health decision. “The panel majority did not disturb the district court’s factual finding that the law provides no health or safety benefit to women; it upheld the law despite that finding.”

Louisiana Solicitor General Elizabeth Murrill countered that the panel’s opinion “hinged on a close review of a massive record, applying clear-error review to district court fact-finding. Plaintiffs cannot point to obvious errors, and they give no reason why this Court should redo the panel’s work.”

The Supreme Court also has pending a petition from Indiana in which the state is appealing decisions blocking enforcement of state requirements for the disposal of fetal remains and restrictions on certain pre-viability abortions.

Planned Parenthood of Indiana and Kentucky challenged the law, signed in 2016 by then-governor of Indiana , now Vice President Mike Pence. The case is Box v. Planned Parenthood of Indiana and Kentucky.

Indiana this week filed a second petition in the high court, this one challenging a Seventh Circuit decision striking down the state’s requirement that women seeking abortions have an ultrasound performed at least 18 hours before the procedure.

 

Read the Supreme Court’s order below:

 

 


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