In two 5-4 decisions Thursday evening, the U.S. Supreme Court allowed the state of Alabama to execute a Muslim inmate after denying him the presence of his imam and blocked a Louisiana abortion law that could have left just one abortion provider for the state.
In the Alabama case, Chief Justice John Roberts sided with the conservatives on what amounts to a technicality. Asked to stay the execution so that the inmate, Domineque Ray, could have the "spiritual guidance and comfort from a cleric of his own faith," the court said that he waited too long the make the request, and overruled an appeals court stay issued Wednesday. The appeals court issued that stay because of serious questions raised about religious discrimination by the state in refusing the request that it would have granted a Christian inmate.
In dissent, Justice Elena Kagan wrote that the majority was "profoundly wrong" in this case of religious discrimination. "[A] Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites," she wrote. "But if an inmate practices a different religion—whether Islam, Judaism or any other—he may not die with a minister of his own faith by his side. […] That treatment goes against the Establishment Clause's core principle of denominational neutrality," she added, citing the command of First Amendment’s Establishment Clause "that one religious denomination cannot be officially preferred over another." Domineque Ray was killed at 10:20 p.m. by the state of Alabama.
In the second case, Roberts sided with the liberal justices to grant a temporary stay, allowing Louisiana's abortion providers to continue to operate while an appeals court deliberates on the case. At issue is an abortion law nearly identical to one from Texas that the Supreme Court struck down just two years ago in Whole Woman's Health v. Hellerstedt, requiring that abortion providers obtain surgical privileges at a hospital within 30 miles of their clinic. That requirement in Louisiana would have left just one provider in one clinic in the entire state. "Given the number and severity of the law's penalties, no clinic or doctor without admitting privileges will continue to provide abortions" should the law become enforceable, lawyers for the clinics and doctors wrote in their appeal to the SCOTUS to stay the law. "Irreparable harm to women in Louisiana, therefore, is imminent."
The dissent in the second case was written by Brett Kavanaugh, who voted to ignore that Supreme Court precedent from just two years ago. In his dissent, Kavanaugh made crystal clear what he intends to do on the issue of abortion: This was a tortured declaration of war on Roe v. Wade in which Kavanaugh pretended that the Louisiana law wouldn't impose an undue burden on the state's women, and said that the court should not block the law because Louisiana promised it wouldn't enforce it too "aggressively" for 45 days. If it did do so after those 45 days, he said, the providers could just challenge the law again. Kavanaugh didn't go directly at Roe, but instead hid behind the supposed promise from the state that it wouldn't immediately go after providers.
But his intent—and his blatant rejection of Supreme Court precedence that is just 2 years old—was clear. This case will come back to the court to be ruled on on the merits, probably in the upcoming October session. For now, Roberts wasn't willing to do that. That's a thin reed for the rights of women to be holding onto.