Kavanaugh Dissent Opens Door for Abortion Restrictions
Feb 10, 2019, 00:53
Roberts actually voted against the court's 2016 Hellerstedt decision that struck down a Texas law requiring admitting privileges that are exactly the same as those in Louisiana. The abortion industry now will askthe Supreme Court for a full review.
Abortion advocates celebrated the ruling, calling it a step forwards for women's rights, while pro-life leaders excoriated the decision, which they said provides opportunities for more unsafe abortion procedures. "If the justices decide to take up the case, which seems likely because the prospect that the Supreme Court will grant review is one of the criteria that the justices considered before granting the stay, oral argument would likely be held in the fall of 2019 or winter of 2020, with a decision by the end of June 2020".
And, in the death penalty case, Justice Elena Kagan wrote a powerful dissent that said her conservative colleagues were so intent on hastening executions that they were willing to overlook a "core principle" of religious neutrality.
Kavanaugh wrote a dissent that said he would have let the law go into effect because the appeals court had said "the new law would not affect the availability of abortions from. the four doctors who now perform abortions at Louisiana's three abortion clinics".
Roberts was a dissenter in that case, and his actions Thursday was seen in some conservative corners as a betrayal. "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".
Kavanaugh, writing for the first time from the high bench on the issue of abortion, argues that Louisiana's four abortion doctors have plenty of time to obtain the admitting privileges they need before the restrictions take effect after a 45-day transition period.
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The justices could eventually agree to take up the case and uphold the law.
He added that if they cannot, "then even [Louisiana] acknowledges that the law as applied might be deemed to impose an undue burden".
The state law requires abortion providers to have admitting privileges at nearby hospitals, a demand that some argued would have shuttered multiple abortion clinics. The district court that initially ruled the law unconstitutional was very detailed in its fact-finding, which made it clear that the law would place an undue burden on women's right to abortion.
"Remember, in the Hellerstedt case, Roberts joined with the other conservative justices to say that such regulations are totally within bounds, even under the Roe and Casey precedent of a right to an abortion". But it has never gone into effect.
The Louisiana clinics had argued that they would have been forced to stop performing abortions immediately and that clinics, once closed, are hard to reopen.
DeGravelles further found that were the Louisiana law allowed to go into effect, only one clinic and one doctor in the state would be qualified to perform abortions.
Louisiana and its supports have countered that it is a phased-in requirement which protects women by ensuring that abortion doctors are capable of handling medical emergencies.
The Louisiana measure provides that physicians who perform abortions must have admitting privileges at a local hospital. "Rather, the question should be whether the Louisiana law confers any benefits relative to the cost imposed on abortion". He said the closing of clinics would not impose driving distances as long as those in Texas, and he said that it was easier to get hospital admitting privileges in Louisiana. Smith put the number instead at "at most 30 percent".
After the ruling, some Democrats seized on Kavanaugh's vote as proof that he was not following through on his assurances at his confirmation hearing to respect past Supreme Court decisions on abortion.
The justices still may hear the case. One, a Trump appointee, was recused.
Translation: The Fifth Circuit majority threw the rule of law and proper appeals court procedure out the window.
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