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techkenyot.com February 21, 2019


Abortion case shows Roberts firmly at Supreme Court’s center

09 February 2019, 08:16 | Glen Norman

Pablo Martinez Monsivais Associated Press File

Pablo Martinez Monsivais  Associated Press  File

While reproductive rights advocates expressed relief on Thursday after the Supreme Court temporarily blocked an extreme Louisiana anti-abortion law that could have left the state with just one doctor authorized to perform the procedure, legal experts and women's groups warned that Justice Brett Kavanaugh's dissent in the case confirmed fears that he is dead-set on overturning Roe v. Wade. The statute, which requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of their clinic, is essentially identical to a Texas law struck down as unconstitutional in the 2016 Whole Woman's Health v. Hellerstedt.

Five justices, including the four most liberal members and Chief Justice John Roberts, supported the injunction.

The court's action on the death penalty case was an example of Roberts siding with his fellow conservatives in allowing Alabama to execute death row inmate Domineque Ray, who said that as a Muslim his constitutional religious rights were violated by the state's refusal to let him have an imam present.

The justices could eventually agree to take up the case and uphold the law. The appeals court said it's not clear that any clinic would close.

Louisiana argues that the law is necessary to provide a higher level of physician competence, but critics say there is no medical justification for the law and it amounts to a veiled attempt to unlawfully restrict abortion. Similarly, the 5th Circuit acknowledged that it did not have any evidence that the Louisiana admitting-privileges requirement would help the health or safety of any women, even though it created a burden on providers and their patients. If the law is later upheld, the court's decision, "leaves everyone wondering when, if ever, they can rely on the rulings of the court". "If a law does not amount to an unconstitutional burden unless it does something as dramatic as close 20 clinics in a geographic area as large as Texas, nearly every law would be constitutional".

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But those challenging it filed an emergency brief in the Supreme Court asking for it to block the law as they sought an appeal.

In dissent, Kavanaugh said that the Court should have allowed implementation of the law to resolve the dispute over its effects on access.

"At this point", she concludes ominously, "the question is how long will Chief Justice John G. Roberts Jr. stand between those four justices and an open season on Roe v. Wade, the rule of law and respect for precedent".

In the court's 2016 decision, it said the admitting-privileges requirement "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".

"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, which represented the law's challengers.

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"The true issue in determining undue burden shouldn't be whether the four doctors who now perform abortions can keep on doing so", writes Feldman.

Roberts voted in favor of a similar abortion law in Texas in 2016.

The Supreme Court order was issued by the narrowest of margins.

The Fifth Circuit's decision to allow the Louisiana law to take effect, is, as my colleague Imani Gandy explains here, bonkers.

Sen. Susan Collins (R-Maine), in particular, was called out for her decisive vote to confirm Kavanaugh, and progressives vowed to ramp up their efforts to oust her in 2020. He is, by most measures, a very conservative justice, but he seems determined to keep the court from moving too far right too fast and being perceived as just another forum for partisan politics in Washington.

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The court, of course, could accept the Louisiana case for review next term, reopening the abortion debate, and perhaps even entertaining the possibility of reversing Roe.



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