Pro-abortion advocates cheered the court's tight ruling and noted how both of President Trump's Supreme Court picks dissented. "If they can. then the new law would not impose an undue burden for purposes of [the precedent in the Texas case]".
During Brett Kavanaugh's confirmation hearing, he put on a dog-and-pony show while trying to paint a picture of a justice simply interested in the law, and as his quote at the top of this story demonstrates, he made it seem as if he would respect precedent.
Make no mistake about it: Brett Kavanaugh demonstrated in this opinion that when it comes to abortion access, he believes that upholding Supreme Court precedent takes a backseat to enforcing conservative ideology. But it has never gone into effect.
Nancy Northup, president of the Center for Reproductive Rights, which represented the challengers, hailed the ruling, saying, "The Supreme Court has stepped in under the wire to protect the rights of Louisiana women". And yet. Not only is his first abortion rights vote to do the opposite, he authors the dissenting opinion, inviting states to ignore abortion rights precedent like Whole Woman's Health.
The order was 5-4 with Chief Justice John Roberts joining the court's four liberals voting for the stay. The difference between then and now is that Justice Anthony Kennedy, who cast the decisive fifth vote in the 2016 Texas case, retired last June and has now been replaced by Trump appointee Kavanaugh. "By contrast, if the three doctors can not obtain admitting privileges, then one or two of the three clinics would not be able to continue providing abortions". The law was almost identical to the Texas provision the Court had declared unconstitutional two and a half years prior.
"The U.S. Court of Appeals for the 5th Circuit maintained that the burdens imposed by Louisiana's admitting privileges requirement are less severe than the burdens imposed by the same requirement in Texas", writes Litman. "The Supreme Court rightfully refused to uphold a brazen and unconstitutional attempt to ignore identical cases that are meant to shutter abortion clinics in the state, making Roe v. Wade obsolete". Roberts issued a dissent at the time.
With the injunction, the Supreme Court will likely be forced to consider the law in an upcoming session. A decision on whether the high court will take on the abortion clinic legislation could come this spring. That decision, and the subsequent refusal to hear it en banc, is a flawless example of the courts going off on its own to advance a political agenda-in this case, an anti-choice one. That would be a tacit acknowledgment that a majority of the justices no longer support the 2016 decision, and an invitation to anti-abortion state legislatures to pass more laws aimed at gutting Roe v. Wade without reversing it outright.
If physicians in the state's three abortion clinics were still unable to attain admission privileges after a 45-day transition period, Kavanaugh said they could bring new claims against the state. Planned Parenthood v. Casey prohibits abortion regulations that place any "undue burden" on women.
CNBC reported that the law had been set to go into effect Monday but was held up pending the Supreme Court's decision. Kavanaugh didn't have to write this dissent. If they fail, they could return to court, Kavanaugh said.
Unsurprisingly, the abortion lobby is fighting back. But he didn't. It's hard not to read Kavanaugh's decision to author Thursday's dissent as a political rather than a legal one: assurance to those benefactors other than Collins that he's a safe anti-choice vote.
The court rejected his request for an imam's presence, prompting liberal Justice Elena Kagan to call the decision "profoundly wrong". Current cases are asking courts to recognize the unborn as persons.
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