As you may recall, in February, by a vote of 5-4, the U.S. Supreme Court granted a stay against the implementation of Act 620, a Louisiana law that would require doctors who provide abortions to obtain admitting privileges at a hospital within a 30-mile radius of their clinics. The court did not rule on the substance of the case of June Medical Center v. Gee. Rather the justices ruled to give reproductive rights activists time to file an appeal of a 2-1 ruling of a Fifth Circuit Court of Appeals panel that would have allowed the law to go into effect immediately.
On Wednesday, that appeal was filed by the Center for Reproductive Rights (CCR). It calls for the court to summarily reverse the Fifth Circuit’s go-ahead on the law. This would mean no need for oral arguments or briefs to be filed. The court would simply say “no” to the appeals court and Act 620 would be permanently blocked. That would reinforce the Supremes’ decision in the case of Whole Woman’s Health v. Hellerstedt. In that 2016 decision, the court ruled 5-3 that HB 2, a Texas law requiring hospital admitting privileges for doctors performing abortions, was unconstitutional because it placed an “undue burden” on women seeking to terminate their pregnancies.
The advocates who drafted Act 620 intentionally modeled it on the Texas law which means the Fifth Circuit’s decision to allow the Louisiana law to go forward is openly defiant of Supreme Court precedent. Thus, the ruling in the CCR appeal ought to be a slam dunk in favor of reproductive rights advocates. Since Hellerstedt was decided, however, the Supreme Court’s composition has changed with the addition of Neil Gorsuch and Brett Kavanaugh, and the outcome of the Louisiana case is far from certain.
At Rewire News, Jessica Mason Pieklo has a smart analysis of the situation:
According to the petition filed with the Roberts Court, summary reversal is appropriate here because, by Louisiana’s own admissions, Act 620 is identical to provisions the Roberts Court already struck down as unconstitutional. A failure to issue a summary reversal here would send a signal to the lower courts that they could continue to go rogue—as the Fifth Circuit did—on precedent with which the judges disagree.
“Summary reversal would reestablish this Court’s authority to say what the law is and reaffirm the principle that lower courts are absolutely bound to follow this Court’s precedents—a principle that is most likely to be tested in controversial and politically charged cases such as this,” the petition states. [...]
Summary reversal would also allow Roberts an out of this fight. He could both side with settled precedent and avoid a big abortion rights showdown just three years after Whole Woman’s Health and almost a year after Justice Kennedy’s retirement.
This is a wise move on CCR’s part. But since it could fail, the organization’s attorneys are simultaneously asking the Supreme Court to hear the case on its merits if the justices are unwilling to go for summary reversal.
There are risks in this approach because the new make-up of the high court might mean a decision on the merits would let the Louisiana law be implemented, which would mean a reversal of Hellerstedt. Imposing the hospital admitting privileges requirement would mean a redefining of “undue burden,” terminology the court first used in its 1992 Planned Parenthood v. Casey ruling and reinforced in Hellerstedt specifically to prevent at least some state restrictions from being implemented. That redefinition would almost certainly mean a deluge of new state laws imposing other restrictions that wouldn’t have passed under the old definition.
Without a summary reversal, however, there’s no choice but to fight back. In Louisiana, if the law goes into effect, it will likely leave the state with just one of the three clinics now in operation continuing to perform abortions. In Texas, where the provisions of HB 2 had forced more than half the state’s 40 abortions clinics to close before the Hellerstedt decision, it would probably mean halving their number again. Similar results could be expected in other states where forced birthers are doing everything they can to make abortions more expensive, troublesome, and time-consuming.
While it’s possible the Supreme Court will take on the case this term, it’s more likely the case won’t be taken up until October when the new term begins, with a ruling issued sometime next spring.