The left celebrated this week as U.S. Supreme Court Chief Justice John Roberts joined the four liberal justices in blocking a Louisiana abortion law that would have greatly reduced access to the procedure in the state — but the celebration might be a bit premature, according to Slate.
Thanks to Senators Joe Manchin (D-WV) and Susan Collins (R-ME), who provided last-minute 'yes' votes to Brett Kavanaugh last year, the high court's newest member is still poised to toss abortion access back a few decades.
The basis for the chief justice’s decision was the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, but Kavanaugh indicated in his dissent that he is not as inclined as Roberts to follow precedent.
Slate provides background on the case decided on Thursday:
The case, June Medical Services v. Gee, should be an easy one. It is a challenge to a Louisiana law that is nearly identical to the Texas statute invalidated in Whole Woman’s Health. Louisiana, like Texas, compelled its abortion providers to obtain surgical privileges at a hospital within 30 miles of their clinics. These privileges are often difficult if not impossible to obtain—hospitals can, and do, deny them because they oppose abortion. More importantly, they provide absolutely no medical benefit to women, as the Supreme Court ruled in Whole Woman’s Health. Because these measures impose a substantial burden on abortion providers (and their patients) while providing no benefit to women, the court found them to be unconstitutional.
Then, in 2018, Justice Anthony Kennedy, who cast the fifth vote in Whole Woman’s Health, retired. He was replaced by Kavanaugh, who has a history of upholding abortion restrictions while claiming fidelity to Roe. In anticipation of Kavanaugh refusing to apply abortion precedents, the 5th U.S. Circuit Court of Appeals refused to enforce Whole Woman’s Health. Instead, it asserted (falsely) that the Louisiana law does provide some benefit to women (it does not) and that it doesn’t impose a serious burden. (It does: The law would likely shutter two of Louisiana’s three abortion clinics.) Clearly, the conservative 5th Circuit thought it could overturn Whole Woman’s Health on its own, and trust the Supreme Court to play along.
At the end of the day, Roberts’ choice to join the liberal justices had less to do with maintaining abortion access and more to do with disallowing a lower court to ignore a previous Supreme Court ruling.
This is not the stance Kavanaugh set forth in his dissent.
Kavanaugh feels quite differently. In his dissent, he focused on the fact that, according to the 5th Circuit, Louisiana’s abortion providers did not try hard enough to obtain surgical privileges. That should not matter, because Whole Woman’s Health says the requirement that doctors get privileges in order to perform abortions is unconstitutional, as it bestows no benefit onto patients. Kavanaugh, though, disregarded that conclusion and wrote that the doctors should work harder to get these pointless privileges.
The most astounding aspect of Kavanaugh’s dissent is its credulous belief in Louisiana’s ostensible benevolence toward abortion clinics. He noted that, if the law takes effect, “there will be a 45-day regulatory transition” before it is applied. He also says that Louisiana promised not to “move aggressively to enforce the challenged law” during this period. Kavanaugh accepted the state’s pinky promise not to swiftly close the clinics—even though it has spent months fighting for the ability to do precisely that. At the end of 45 days, the justice wrote, if the doctors still can’t obtain the privileges, they can go back to district court and start the fight anew.