The Supreme Court is temporarily keeping a Louisiana law regulating abortion clinics on hold. Justice Samuel Alito says in a brief order Friday that the justices need more time to review arguments for and against the law, which requires doctors at abortion clinics to have admitting privileges at a nearby hospital. The law was set to take effect Monday, though clinics have asked the high court to block its enforcement. DEM 2020 CANDIDATES MOSTLY SILENT ON BACKLASH OVER LATE-TERM ABORTION BILL The clinics say at least one and maybe two of Louisiana's three abortion clinics would have to close if the law is allowed to take effect. A federal appeals court that upheld the law said it's not clear that any clinic would close. In recent days, a national debate has flared on a related subject: state bills that would roll back restrictions on late-term abortion. CLICK HERE FOR THE FOX NEWS APP<doc-sep>DURING BRETT KAVANAUGH’S Supreme Court confirmation battle last year, there was much speculation over the future of reproductive rights. Supporters of Roe v Wade, the 1973 case recognising a constitutional right to abortion, worried that then-Judge Kavanaugh—in contrast to Anthony Kennedy, the justice he was tapped to replace—would solidify a five-justice majority to jettison the precedent. Pro-lifers hoped he would do just that. But until this week, America had no real idea of how the new conservative bloc would handle controversies over reproductive rights. With an interim decision on February 7th involving a Louisiana law, the picture is coming into focus—and it seems less worrying to supporters of abortion rights than many have feared. The law at issue in June Medical Services v Gee is the Unsafe Abortion Protection Act, passed in 2014, which requires abortion providers in Louisiana to have admitting privileges at hospitals within a 30-mile radius of their clinics. In 2016, the Supreme Court struck down an essentially identical Texas law in Whole Woman’s Health v Hellerstedt, finding it inconsistent with Planned Parenthood v Casey, the court’s 1992 ruling that revised and extended Roe. In the oral argument in Whole Woman’s Health, the liberal justices’ merciless questioning of Scott Keller, the state’s solicitor general, laid bare Texas's true motivation behind the law: limiting abortion access. After scrutinising the record, Justice Stephen Breyer “found nothing” showing that “the new law advanced Texas’ legitimate interest in protecting women’s health”. In his decision for a 5-3 court, Justice Breyer noted that “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment”, Mr Keller “admitted that there was no evidence in the record of such a case”. The regulations had “nothing to do with ability to perform medical procedures”. They had everything to do with slicing the number of abortion clinics in the state from 40 to fewer than 10 and imposing an unconstitutional “undue burden” on a woman’s right to choose. When Louisiana’s law was challenged under this rule, a federal district court struck it down as a clear violation of the Whole Woman’s Health precedent. The Unsafe Unborn Protection Act does “little or nothing for women’s health”, the trial judge wrote, while “crippl[ing] women’s ability to have an abortion”. But the Fifth Circuit Court of Appeals found otherwise, citing factual differences between the Texas and Louisiana contexts and arguing that no crisis of abortion access would ensue from the admitting privileges requirement. Days before the law was set to take effect, the plaintiffs asked the Supreme Court to issue an emergency stay of the Fifth Circuit decision—a move that would temporarily block the enforcement of the contested law while they prepared a full appeal. The rationale for the stay was strong. As Judge James Dennis of the Fifth Circuit wrote in his dissent from his colleagues’ refusal to reconsider the ruling, the judgment “is in clear conflict with the Supreme Court’s decision in Whole Woman’s Health” and the attempt to distinguish the Louisiana law from its “almost identical” Texas analogue is “meritless”. The majority panel’s reading of Whole Woman’s Health is “erroneous and distorted”, he wrote, joined by three colleagues. In urging the Supreme Court to block enforcement of the law, the plaintiffs noted the “disastrous consequences” that would ensue: the admitting-privileges rule would “leave only one physician providing abortions in the entire state” for the roughly “10,000 women who seek abortion services in Louisiana each year”. Because of the Supreme Court's new conservative majority few observers predicted that it would side with the abortion providers by blocking a regulation that was modelled on a law deemed unconstitutional less than three years earlier. Justice Kavanaugh now sat in Justice Kennedy’s seat; Justice Neil Gorsuch, an advocate of natural law, occupied Justice Antonin Scalia's long-empty chair; and Chief Justice Roberts had not been in the majority in Whole Woman’s Health: he, along with Justice Clarence Thomas, had signed Justice Samuel Alito’s dissenting opinion. But on February 7th, after an unusually long delay for an order on an emergency stay—the justices took nearly a week to rule after all the briefs had been filed—the chief justice took the rare step of joining his four liberal colleagues to grant the stay, while all of his fellow conservatives dissented. (Chief Justice Roberts has anchored 5-4 rulings with the liberal wing only five times in his 14 years on the bench, including twice to save Obamacare.) The five-justice majority did not articulate its reasons for blocking the law. Three of the dissenters were silent, too. Only Justice Kavanaugh explained his vote in writing, arguing that since the matter of whether the law poses an “undue burden” is an “intensely factual question”, the better path is to let it take effect (with its 45-day transition period, a feature added at the 11th hour as a hoped-for saving grace during last week’s briefing) and see what impact it has on existing abortion providers. Doctors could always challenge the rule later, he reasoned, if they aren’t able to gain admitting privileges. What happens next? The law will probably remain blocked until the spring of 2020, when the justices are likely to issue a full decision on its constitutionality following briefing and oral argument. It is possible Chief Justice Roberts will switch sides then, choosing to overrule or undermine the holding in Whole Woman’s Health. But given his vote on the stay—and in light of his prime directive to preserve the integrity of the Supreme Court against charges of politicisation—that change of course looks unlikely. When it comes to abortion rights, the five-justice conservative bloc seems split into three camps. Justices Alito, Gorsuch and Thomas will bless any abortion regulation that comes their way, even if it violates the court’s previous decisions. Justice Kavanaugh will vote for most restrictions while purporting—disingenuously, if necessary—to uphold precedent. And Chief Justice John Roberts, hardly a staunch advocate of abortion rights, will be in no hurry to undermine them.<doc-sep>There’s a lot of talk that the new Supreme Court, one with two Trump justices on it, might overturn Roe v. Wade. So the court can’t just wake up one morning and say, we’re overruling Roe v. Wade. I think supporters of abortion rights are right to be nervous, but they’re maybe not exactly right about how to be nervous, what to be nervous about. It’s a shorthand, sure, to say Roe v. Wade can be overruled, but that’s not the only, or even the most likely, outcome. Let me take you through the possible scenarios. Let’s call the first category the nuclear options. These are the most extreme and, therefore, least likely scenarios. The first one would flip Roe on its head. Roe says there’s a constitutional right to abortion. The court could say the Constitution prohibits abortion in the interest of protecting fetal life. That would suggest that fetal life is like any other life, so that taking it away would be murder. So if the court were to go in that very unlikely direction, abortion would be outlawed across the nation, and women could not get abortions in the United States legally. A second nuclear option would be for the court to do away with the right to privacy established in a case called Griswold in 1965. “The individual is entitled to some private sector.” That right to privacy is the foundation for Roe v. Wade. If the right to privacy goes, it would do away with the basis for Roe v. Wade and, therefore, Roe v. Wade itself and flip the issue back to the states and allow states to regulate abortion as they wish. The right to privacy has been, and could be, the foundation of many rights, so I don’t think it’s likely the court will go after the right to privacy. A second possibility, and the one everyone’s talking about, is the court could overrule Roe v. Wade. Protesters: “Ho, ho, Roe v. Wade has got to go. Hey, hey, ho, ho.” So in a post-Roe world, you still have a right to privacy. But that right to privacy does not include a constitutional right to abortion. States would be free to do what they wanted. And some advocacy groups say perhaps 22 states could make abortion illegal entirely. That’s probably not going to happen anytime soon. Protesters: “Hey, hey, Roe v. Wade is here to stay.” Chief Justice John Roberts is an incrementalist. He takes things step by step, and I don’t think his first impulse is going to be, let’s overrule Roe v. Wade when there are other ways to get from here to most of the way there. The last scenario, and the most likely one, is for the court to chip away at Roe v. Wade. The court has already upheld some restrictions on abortion. “The 5 to 4 majority upheld a ban on performing abortions in public facilities.” “The U.S. Supreme Court today upheld the nationwide ban on partial-birth abortion.” “Medication abortion is now effectively blocked in Arkansas.” Much more severe restrictions on abortion rights are a perfectly imaginable scenario when we have a new Supreme Court. Here’s how that could happen. States cannot impose an undue burden on women’s right to abortion. That’s a fairly malleable standard, and it wouldn’t be hard for the Supreme Court to keep it in place, but interpret it slightly differently and say states can impose such restrictions. A couple of years ago, the court heard a case from Texas. And had the court sustained the Texas law, the number of clinics in Texas would have dropped from about 40 to about 10. And that could rapidly diminish the ability of women to get abortions because the nearest abortion clinic, at a minimum, could be hundreds of miles away. It’s a little hard to answer exactly what life will look like in a given state because we’ll have a patchwork of laws. But what’s for sure is that women in red states, and particularly poor women in red states, will have a much harder time getting abortions as each successive abortion restriction is sustained by a court that now has a solidly conservative majority.<doc-sep>
The U.S. Supreme Court on Thursday blocked Louisiana from enforcing a law that women's groups said would leave only a single doctor legally allowed to perform abortions in the state. By a 5-4 vote, the court said the restrictions must remain on hold while challengers appeal a lower court decision in favor of the law. Chief Justice John Roberts voted with the court's liberal members. It was the Supreme Court's first significant action on the hot-button issue of abortion since Donald Trump's nominee, Brett Kavanaugh, replaced Anthony Kennedy, who generally voted with the court's liberals to uphold abortion rights. In Thursday's ruling, Kavanaugh voted with the conservatives — Clarence Thomas, Samuel Alito, and Neil Gorsuch. Kavanaugh filed a dissent, writing only for himself. He said he would have allowed the law to take effect in order to see whether it would impose a burden on women's access to abortion in the state. Abortion-rights advocates applauded the court ruling, while opponents expressed disappointment. “The Supreme Court has stepped in under the wire to protect the rights of Louisiana women,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “The three clinics left in Louisiana can stay open while we ask the Supreme Court to hear our case. This should be an easy case — all that’s needed is a straightforward application of the court’s own precedent.” Benjamin Clapper, executive director for Louisiana Right to Life, said he was disappointed that the law remains on hold. He said supporters of abortion rights have fought “against every common-sense health standard. This is just another example of the extreme lengths the abortion industry pursues to protect abortion-on-demand.” The high court's decision Thursday was not a ruling on the legal merits of the Louisiana restriction. But the decision to keep the law on hold signals that a majority of the justices have doubts about its constitutionality. Passed by the state legislature in 2014, the measure requires any doctor offering abortion services to have admitting privileges at a hospital within 30 miles. Two Louisiana doctors and a clinic filed a legal challenge, arguing that it was identical to a Texas law the Supreme Court struck down in 2016. In that ruling, joined by Justice Kennedy, the court said Texas imposed an obstacle on women seeking access to abortion services without providing them any medical benefits. Chief Justice John Roberts arrives prior to President Barack Obama's State of the Union speech on Capitol Hill on January 28, 2014. Larry Downing / Pool via Getty Images The Center for Reproductive rights said Louisiana's law would leave only one doctor at a single clinic in New Orleans to perform the procedure, a drastic limitation that "cannot possibly meet the needs of approximately 10,000 women who seek abortion services in Louisiana each year." But Louisiana officials urged the Supreme Court to let them begin enforcing the law. They said the challengers' claim of harm rested on the fear that clinics would be shut down overnight. "But that is not correct. Louisiana envisions a regulatory process that begins, logically, with collecting information from Louisiana's abortion clinics and their doctors," the state said. The Supreme Court's 2016 ruling, in a case called Whole Women's Health, said requiring abortion doctors to have hospital admitting privileges was medically unnecessary, given that only a tiny fraction of abortions in the first trimester require hospitalization. By contrast the Texas law caused half the abortion clinics in the state to shut down, forcing women to endure longer travel and increased wait times. It was the most important abortion ruling in 25 years and blocked similar restrictions in Alabama, Mississippi, Oklahoma, Tennessee, and Wisconsin. The court’s action Thursday came in a brief unsigned order with no written opinion, so none of the five justices who voted to block enforcement of the Louisiana law explained their reasoning. Roberts was among the dissenters when the court struck down the Texas law. But the court ruled that it was unconstitutional, and his vote Thursday was consistent with that holding. In response to the lawsuit over Louisiana's identical law, a federal judge said it was likely unconstitutional and issued a stay, blocking its enforcement. But a three-judge panel of the Fifth Circuit Court of Appeals voted to lift the stay. In a 2-1 ruling, the court said Louisiana's law would present far less of an obstacle than the Texas law would have.