Eyes on Kavanaugh and Gorsuch as Supreme Court weighs whether Louisiana abortion law can go into effect

Jabin Botsford | AFP | Getty Images
Supreme Court Associate Justice Neil M. Gorsuch (L) and Associate Justice Brett M. Kavanaugh await the arrival of former president George H.W. Bush at the US Capitol Rotunda on Capitol Hill on Monday, December 3, 2018 in Washington, DC.

Two doctors in Louisiana are asking the U.S. Supreme Court to grant an emergency stay of a law they say could cripple access to abortions in the state starting next week.

The law requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of their clinic. It would leave only one doctor in a single clinic to provide abortions in a state where 10,000 women seek the procedure each year, according to the plaintiffs.

In an application submitted on Monday to Justice Samuel Alito and expected to be reviewed by the full court, the unnamed physicians, represented by the Center for Reproductive Rights, asked the court to prevent the law from going into effect, as it is scheduled to do next week. Alito on Tuesday gave Louisiana two days to respond to the application.

The case could prove to be a test of President Donald Trump's two nominees to the high court, who reproductive rights activists worry could hamstring abortion access.

In 2016, the top court ruled 5-3 that a similar law enacted in Texas was unconstitutional. But that case, Whole Woman's Health v. Hellerstedt, was decided before Justices Neil Gorsuch and Brett Kavanaugh were confirmed to the bench.

The majority included former Justice Anthony Kennedy, who retired in July. Justices Samuel Alito and Clarence Thomas, as well as Chief Justice John Roberts, dissented.

Five justices are required to grant an emergency stay, if the full court acts on the matter, so at least one of the court's five conservatives will have to join the liberal wing in order to prevent the Louisiana law from going into force.

The application follows a September decision from a divided panel of the U.S. 5th Circuit Court of Appeals that found that Whole Women's Health does not preclude the Louisiana law because "unlike in Texas, the [Louisiana law] does not impose a substantial burden on a large fraction of women."

In Texas, the panel said, almost all hospitals require a doctor to admit a minimum number of patients annually in order to retain admitting privileges. In contrast, in Louisiana, only a few hospitals have the same requirement. Judge Jerry Smith, who wrote the panel's majority opinion, also reasoned that driving distances will not increase for women seeking abortions and that "at most, only 30 percent of women" seeking abortions will be affected.

"We are of course bound by WWH's holdings, announced in a case with a substantially similar statute but greatly dissimilar facts and geography," Smith wrote in the 2-1 ruling.

In a dissent, Judge Patrick Higginbotham criticized the majority for drawing "conclusions for which there is no support in the record" and for rejecting "the district court's well-supported findings." The district court had found that as many as 70 percent of women seeking abortions could be unable to obtain one under the new law.

Higginbotham also challenged the majority's motives, suggesting there could be an ulterior justification.

"In the absence of fit between the means (requiring admitting privileges) and the ends (ensuring women's health), I am left to conclude that, viewed objectively, there is an invidious purpose at play," Higginbotham wrote, suggesting a possible political intention.

In a statement, Center for Reproductive Rights CEO Nancy Northup said the law "could be the last straw for the few remaining clinics."

"Less than three years ago, the Supreme Court struck down an identical law in Texas, holding that it served no purpose other than to restrict access to safe and legal abortion," she said. "The Fifth Circuit has brazenly ignored this precedent squarely on point."

Planned Parenthood also weighed in. "When courts blatantly disregard established Supreme Court precedent, every person's rights and freedoms are threatened," Helene Krasnoff, Planned Parenthood's vice president of public policy litigation and law, said in a statement. "We stand by our partners at the Center for Reproductive Rights in their fight to get emergency relief for Louisiana patients. The unconstitutional nature of this law has been and should continue to be a foregone conclusion."

The high court has largely avoided wading into high-profile disputes since Kavanaugh's contentious confirmation hearings last year.

The application before the court now is not a request to review the merits of the case, though such a request is expected. Rather, the plaintiffs have asked the justices to temporarily halt enforcement of the law until they file a formal petition.

Trump's nominees have been heavily scrutinized over their views on abortion because Trump pledged to nominate justices who would overturn the landmark abortion ruling Roe v. Wade. Both Kavanaugh and Gorsuch have said they view Roe as settled, though that failed to quell suspicion among Democratic lawmakers and reproductive rights groups.

In December, Kavanaugh voted with the court's liberals in a decision that effectively barred two states from defunding Planned Parenthood, a major abortion provider and a bugaboo of abortion critics. That decision alarmed opponents of abortion, some of whom were already wary of Trump's second high court nominee, whom they saw as more moderate than other judges on the president's shortlist.

Click to show more