Supreme Court blocks Louisiana abortion restrictions, handing anti-abortion movement a temporary setback

Richard Wolf
,USA TODAYFebruary 7, 2019

Anti-abortion activists protest outside of the Supreme Court during the March for Life in January. More

WASHINGTON – A deeply divided Supreme Court Thursday temporarily blocked abortion restrictions in Louisiana that critics complained were virtually identical to those struck down by the justices in 2016.

Although the court's new conservative majority may be poised to uphold more limits on abortion in the future, the Louisiana law's similarity to one the justices thwarted in Texas less than three years ago apparently sealed its fate, at least for now.

The court still could uphold the law after further review, giving President Donald Trump something to show for his 2016 pledge to appoint "pro-life justices."

The action gave abortion rights proponents, as well as women seeking procedures, a reprieve from a law that critics said threatened to leave just one abortion clinic and provider in business to serve an estimated 10,000 women.

Chief Justice John Roberts joined the court's four liberals in blocking the law.

Four conservatives objected, and new Associate Justice Brett Kavanaugh wrote a dissent on his own behalf. He said the law should be implemented now so that both sides can find out how many abortion clinics and providers survive the new restrictions.

Without letting the law take effect, Kavanaugh wrote, the court likely will have to hear the case next fall before deciding whether enough abortion clinics and providers remain in business. That, he said, "will take far longer and be no more beneficial than the approach suggested here."

The Louisiana law requires abortion providers to have admitting privileges at nearby hospitals. That was one of two requirements of the Texas law that the Supreme Court struck down as burdensome in a landmark 5-3 ruling when Associate Justice Anthony Kennedy held the deciding vote.

Louisiana officials claimed their law would not have the same deleterious effects that the Texas law threatened, thereby making it constitutional under the Supreme Court's "undue burden" test. The law previously was upheld by the U.S. Court of Appeals for the Fifth Circuit, dominated by conservatives, including five appointed by Trump.

Since the Supreme Court's 2016 decision, Kennedy retired and two Trump nominees – Associate Justices Neil Gorsuch and Kavanaugh – gave abortion opponents hope for a reversal on laws affecting abortion.

Kavanaugh, who succeeded Kennedy in October, has been viewed as the crucial fifth conservative vote. He has praised former chief justice William Rehnquist's dissent from the 1973 Roe v. Wade decision legalizing abortion, and he dissented from his federal appeals court's 2017 decision allowing an undocumented teenager in government custody to get an abortion.

But during his confirmation hearing last September, Kavanaugh referred to landmark Supreme Court decisions legalizing and affirming abortion rights as "precedent on precedent."

Abortion rights groups argued that the Texas decision set a precedent from which the justices could not retreat. The opinion by Associate Justice Stephen Breyer, in which Kennedy joined the court's liberals, said the law would force too many abortion clinics to close, leaving the state unable to handle up to 70,000 abortions annually.

That burden on women, the court said, was unconstitutional without equal or greater health benefits.

Since that 5-3 ruling, which occurred after Associate Justice Antonin Scalia's death left the court shorthanded, laws requiring hospital admitting privileges have been struck down or unenforced in several other states, including Alabama, Mississippi, Oklahoma, Tennessee and Wisconsin. Only Missouri, North Dakota and Utah still have similar laws on the books.

Louisiana's statute was passed in 2014 but struck down by a federal district judge after trial three years later. It was resurrected in a 2-1 ruling by a federal appeals court panel, and the full appeals court later voted 9-6 against hearing the abortion rights group's appeal. Trump's judges all voted with the majority.

The justices still are considering whether to hear another abortion case challenging an Indiana law that bans abortions sought because of race, sex or disability. Another part of that law requires fetal remains to be buried or cremated. It was signed by Gov. Mike Pence before he was elected vice president.

Following Kavanaugh's calamitous Senate confirmation, which he survived by a narrow 50-48 vote amid an allegation of sexual assault during high school, Roberts has tried to keep the court far away from controversy. But that effort hasn't been entirely successful.

The court will hear two cases later this month challenging the use of a Christian cross to honor World War I veterans. In March, it will hear two cases challenging partisan election mapsin North Carolina and Maryland.

A case challenging the Trump administration's effort to add a question on citizenship to the 2020 Census may be granted for April or May. Gun rights are on tap for the fall, and cases on immigration and LGBT rights may not be far behind.