The U.S. Supreme Court’s latest action in an abortion-related case again has prompted pro-life Americans to wonder whether a majority even exists to protect unborn children and their mothers.
In an order issued Feb. 7, the high court blocked enforcement of a Louisiana law to require that an abortion doctor have admitting privileges at a nearby hospital. The Fifth Circuit Court of Appeals in New Orleans had upheld the 2014 law, which is intended to protect the health and lives of women who suffer complications from abortion.
The action, which four justices opposed, followed by less than two months the Supreme Court’s refusal to review lower court opinions rejecting decisions by Kansas and Louisiana to remove Planned Parenthood as a Medicaid provider. The cases in that Dec. 10 action did not address abortion directly but involved whether Medicaid recipients could challenge a state’s decision on who qualifies as a provider in the government program that helps with health care expenses.
Both actions left pro-life advocates questioning where the court stands on abortion regulations and the 1973 Roe v. Wade decision legalizing the procedure after two justices named by President Trump have been added in the last two years.
“We are disappointed this law has been enjoined, but we are hopeful that the state of Louisiana will prevail in the end,” Travis Wussow, general counsel and vice president for public policy of the Southern Baptist Ethics & Religious Liberty Commission, said in written comments for Baptist Press. “The abortion lobby’s relentless opposition to regulations like these exposes the industry’s drive for profits above all else.
“We will continue to stand for the dignity of all as image bearers of God as we seek to care for the vulnerable,” Wussow said.
Catherine Glenn Foster, president of Americans United for Life, said her organization “is disappointed that a bare majority of [justices] continued to stay the enforcement of a commonsense safety measure that will protect Louisiana’s women from substandard abortion practitioners.”
Two days before the high court’s action, David French – senior writer for National Review and former senior counsel for Alliance Defending Freedom – said a stay of the Fifth Circuit opinion by the justices would be “quite frankly ominous news for the pro-life movement.”
A stay means a compelling possibility exists that a majority will ultimately decide a lower-court decision was in error.
“If the Court grants the stay, pro-life advocates should be gravely concerned,” French wrote Feb. 5.
The pro-life movement’s hopes are the justices will review and uphold the Fifth Circuit decision. “We look forward to a closer look at the real facts of this case by the Court,” Foster said, “and we’re confident that in doing so, the Justices will vote to uphold it.”
Louisiana’s Unsafe Abortion Protection Act requires a doctor to have admitting privileges at a hospital within 30 miles of the abortion clinic where a procedure is performed. While a federal judge struck down the law, a three-judge panel of the Fifth Circuit reversed the decision in a 2-1 ruling in September. The appeals court denied Jan. 18 a request for a review by all the judges.
An abortion clinic in Shreveport and two unnamed doctors responded by requesting a stay from the Supreme Court.
Chief Justice John Roberts split from what is considered the court’s conservative branch to join the high court’s liberal wing – Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – in granting the stay. Associate Justices Clarence Thomas, Samuel Alito and Neil Gorsuch joined the court’s newest member, Brett Kavanaugh, in a four-page dissent.
Kavanaugh and Roberts joined the four liberal justices in their December decision not to review the appeals regarding the removal by Kansas and Louisiana of Planned Parenthood as a Medicaid provider.
In his dissent on the Louisiana case, Kavanaugh said the stay should be denied while three abortion doctors affected by the case seek admitting privileges at hospitals. Louisiana has three abortion clinics and four doctors who perform abortions at those facilities. One of the doctors already has admitting privileges.
The doctors have a 45-day regulatory transition period in which to obtain privileges from hospitals and could bring a complaint at the conclusion of that time if they are unsuccessful, Kavanaugh wrote.
The high court’s approach by granting the stay “will take far longer and be no more beneficial than the approach” he suggests, Kavanaugh said.
Ed Whelan, president of the Ethics and Public Policy Center and a contributor to National Review, said in a Feb. 8 post he does not think Roberts’ vote for the stay “signals anything about how he will rule on the merits of the case.” Whelan said he would be “very surprised” if Roberts considers a 2016 decision on a similar Texas law to be “sound precedent.”
In that case, the high court voted 5-3 to rule that portions of a Texas law regulating abortion doctors and clinics constitute an “undue burden” on a woman’s right to abort her child and are therefore unconstitutional. Overturning a Fifth Circuit opinion, the justices invalidated a section mandating an abortion doctor to have admitting privileges at a nearby hospital. They also struck down a requirement that an abortion clinic must meet the health and safety standards of other walk-in surgical centers.
Defenders of the Louisiana law say it does not include the health and safety requirements of the Texas law and the situation in the state does not burden women seeking abortions like the Texas mandate does.
Since the decision on the Texas law, Trump has nominated Gorsuch to replace the late Antonin Scalia, who died in 2016 before that ruling. When Associate Justice Anthony Kennedy retired last year, Trump nominated Kavanaugh, who barely received Senate confirmation after a contentious battle focused on his abortion views and sexual assault allegations.
While pro-lifers have hoped the addition of the Trump nominees to Roberts, Thomas and Alito would produce an upholding of state abortion restrictions and an eventual reversal of Roe, abortion-rights advocates have warned Roe is on its death bed and pressed some state legislatures to approve expansive protections for the procedure.
Ilyse Hogue, president of NARAL Pro-Choice America, applauded the Supreme Court’s stay, saying in written comments, “While this particular ruling thankfully falls on the right side of history, it illustrates a sobering reminder: the thread that women’s rights hang by is dangerously thin in so many places across the country. [NARAL and its members] will continue to combat attempts by hostile state legislatures and courts to gut the protections of Roe v. Wade.”
The case is June Medical Services v. Gee.