The US Supreme Court is asking for more time to consider whether a restrictive abortion law in Louisiana should go into effect — one that challengers say would leave just a single doctor in the entire state eligible to perform abortions.
Justice Samuel Alito issued an order late Friday that blocked the state from implementing the law until February 7. Don’t read too much into that 11th-hour order — it appears to be largely an administrative decision — but the case itself could have wide-ranging implications for abortion access in the US.
Louisiana first passed the restrictions in 2014, though they have been tied up in the federal courts ever since. The law, which is similar to a Texas statute the justices struck down in 2016, requires that physicians must have admitting privileges at a hospital within 30 miles. Reproductive rights advocates say the restrictions and associated costs for clinics would all but cripple the remaining abortion providers in the state.
The state was prepared to begin implementing the law Monday, but Louisiana and the opponents challenging the law have filed a flurry of legal documents asking for the high court’s input, prompting the justices to ask for a few additional days to review all of the materials.
Alito’s order delays it from going into effect until Thursday, but that shouldn’t be necessarily be taken as a sign of how the court will rule. Alito, a conservative appointed by President George W. Bush who handles the emergency requests from that region, said in the brief that it “does not reflect any view regarding the merits” of the case.
This gives just a few days of increased access to the tens of thousands of women in Louisiana who seek abortions each year.
However, the implications of the Supreme Court’s impending decision on this case are even more far-reaching, offering the first signs of whether a judicial bench crafted by President Donald Trump will uphold Roe v. Wade, or start chipping away.
The Louisiana abortion restrictions pose an important first test for the new Supreme Court
Conservatives have pushed slowly and methodically over the years to chip away at the rights enshrined in the landmark 1973 Roe decision.
State legislatures around the country have stacked up a number of measures of dubious medical necessity that, in effect, restrict access to abortion. They’ve demanded everything from mandatory waiting periods, down to outlining specific abortion techniques or number of parking spaces available outside of a clinic. And now that the Supreme Court is stacked with a conservative majority, reproductive rights advocates fear those chips may soon be falling.
Abortion providers and advocacy groups have been able to challenge the incremental encroachment on abortion rights by arguing in court that they violate Roe or Planned Parenthood v. Casey, a 1992 decision that barred laws from placing an “undue burden” on a woman’s abortion rights. The Supreme Court has largely agreed with advocates.
In fact, the court already struck down a near-identical version of the bill they’re considering in 2016. Like Louisiana, Texas required abortion providers to have admitting privileges at a local hospital. But justices ultimately decided the law posed an undue burden to a woman’s constitutional right to an abortion. On top of that, the court found the restriction to be medically unnecessary, saying it “provides 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.”
But crucially, that decision came down before Justice Brett Kavanaugh was appointed to the bench. The vote on the Texas law went down 5 to 3, with Justice Anthony Kennedy siding with the majority. Now that Kennedy is retired and Kavanaugh has replaced him, this makes the looming outcome in the Louisiana case seem even dicier.
The Fifth Circuit Court of Appeals says the Louisiana law does not impose the same burdens as the Texas version. In September, a three-judge panel voted to uphold the law.
It’s hard to say how the Supreme Court will rule on the Louisiana restrictions, but it’s not the only case that could end up on their docket. As Vox’s Anna North notes, now that Kavanaugh has solidified the court’s conservative block, this case is just one of 12 other state-level abortion challenges that advocates fear could give conservative justices a shot to cripple Roe:
Thirteen of these challenges have now reached federal courts of appeals, meaning they’re one step away from the Supreme Court. If the Court agrees to hear one of them — which could happen as early as this year — it could provide an opportunity for the justices to revisit the right to an abortion guaranteed in Roe.
Even with Kavanaugh replacing Kennedy, the Court might not fully overturn Roe. Many believe it’s more likely that the Court would weaken abortion protections by, for example, altering the “undue burden” standard set forth in Casey.
The Supreme Court has already punted on several cases that wade into the waters of reproductive rights. But just as anti-abortion activists have tried to make happen, there may be too many cases in the works for the high court to ignore much longer.