The outcome of a feud around a Louisiana law governing abortion providers could indicate whether a fortified conservative majority in the Supreme Court is willing to reduce the right to the death penalty. ;abortion.
The high court should decide in the coming days if the state can start enforcing a law requiring that doctors who work in abortion clinics have admission privileges in a nearby hospital. It was adopted in 2014, but never took effect.
The Supreme Court overturned a similar law in Texas three years ago. But the composition of the court has since changed. Two people appointed by the president Donald Trump joined the court and Judge Anthony Kennedy retired. Kennedy voted to cancel the Texas law.
The law was to come into effect on Monday, but Judge Samuel Alito issued a brief order last week, which pushed back the effective date by at least Thursday, because, according to Alito, the judges needed more of time to consider an emergency appeal from Louisiana abortion providers. Alito handles these calls from Louisiana.
The question before the court is whether the law can be applied even if remedies for its validity continue, so that the imminent vote may not be the last word of the judges in this matter.
But this should be a window to the court's opinion on the right to abortion.
A vote allowing the law to take effect "will be a very good sign that the amended court will not monitor compliance by states or lower courts" with the Texas decision or a previous ruling in 1992 that reaffirmed a woman's right to an abortion. The court first announced in Roe v. Wade in 1973 that Leah Litman, a law professor at the University of California at Irvine, wrote on the progressive blog Take Care.
Opponents of abortion have been waiting for this signal since Trump's day electionespecially after having promised in the 2016 campaign to appoint "pro-life judges". Judge Neil Gorsuch, appointed for the first time by Trump, was replaced by the late Judge Antonin Scalia, who opposed the right to abortion. Second choice of the President, Justice Brett Kavanaugh, replaced Kennedy.
The current situation is somewhat similar to the court's decision regarding a particular abortion method that its opponents call abortion by partial birth.
In 2000, the Supreme Court overruled the ban on the procedure by Nebraska by a vote of five to four. Seven years later, the court upheld a federal ban on partial birth abortion by an identical vote. The composition of the court had changed, with John Roberts replacing William Rehnquist as Chief Justice and, more importantly, Alito taking Sandra Day O. Connor instead of the court. O & # 39; Connor voted in favor of the cancellation of state law; Alito voted in favor of maintaining the federal ban.
In the majority opinion that upheld federal law, Kennedy wrote that the law did not impose "undue burden" on a woman's right to abortion, a standard set out in the 1992 decision on abortion rights, and that it was sufficiently different the Nebraska law that had been rescinded in 2000, although neither of the two laws contained a provision allowing for the use of the law. method if a doctor decided that it was necessary to preserve the health of the mother.
Rachel Morrison, litigation lawyer for the Americans United for Life anti-abortion group, said the court could also find differences between Texas and Louisiana in situations where women seeking an abortion to have an abortion. The court's decision overturning the Texas law "does not mean that all admission privilege laws are inherently unconstitutional or that there is sufficient evidence that the law of Louisiana will lead to the closure of the law." A lot of abortion clinics in Louisiana, "Morrison wrote in his group. website.
The differences between the laws of the two states were at the heart of last year's decision 2-1 issued by the New Orleans Federal Court of Appeal which upheld the action taken by Louisiana. The court dismissed the trial judge's findings: at least one and possibly two of the three state abortion clinics should close and at most two doctors would remain licensed to perform abortions in Louisiana.
In January, the appeals court as a whole voted by 9 votes to 6 not to intervene in the case, setting up the appeal of the Supreme Court.
The appeal decision "bravely ignored the recent precedent of the US Supreme Court," said Nancy Northup, director of the Center for Reproductive Rights. The group represents clinics in the legal battle.
What is even more alarming for abortion rights advocates, it is that an action of the higher courts allowing the law to take effect could provide a roadmap to the lower courts that are considering or are likely to weigh heavily, other efforts by the state to restrict abortion.
Judges will be able to reduce abortion rights "by distinguishing any decision in favor of reproductive justice and by refusing to scrutinize any law affecting access to the child". abortion or the providers of abortion services, "wrote Litman.
The case is the case June Medical Services v. Gee.