In a pleasant, if perhaps temporary, bit of good news for supporters of reproductive rights, a 5-4 majority of the U.S. Supreme Court overruled the Fifth Circuit Court of Appeals on Thursday and placed a hold on implementation of a new Louisiana law aimed at shutting down abortion clinics via health regulations making it difficult for them to function. Because the law in question was very similar to a Texas law struck down by a 5-3 majority of SCOTUS in the 2016 Whole Woman’s Health v. Hellerstedt case as creating an undue burden on the exercise of the right to an abortion, the Louisiana case (June Medical Services v. Gee) was considered a good test of whether the changing composition of the Court would lead quickly to a new regime of abortion law.
With Anthony Kennedy gone and two Trump appointees now on the Court, anti-abortion activists hoped, and abortion rights activists feared, that SCOTUS would approve a lower Court decision that essentially defied the precedent in Whole Women’s Health. Sure enough, Neil Gorsuch and Brett Kavanaugh opposed the action to halt the Louisiana law, with Kavanaugh writing a brief dissent arguing that the law should be allowed to take effect before its impact on abortion services is adjudged. But Chief Justice Roberts, a dissenter in Whole Women’s Health, joined the Court’s four liberals in granting the stay.
As NPR’s Nina Totenberg warned, the action may simply represent a brief reprieve for the Louisiana petitioners:
The court’s action, however, is only a pause.
It allows abortion-rights proponents time to bring an appeal to a newly constituted conservative court majority that may nonetheless be willing to reverse course dramatically on the subject of abortion.
Think Progress’s Ian Millhiser believes Roberts sided with the liberals strictly to protect his Court’s turf, and is likely to wind up voting to uphold the Louisiana law and perhaps far more extensive abortion restrictions:
Had the Supreme Court denied the stay, it would have sent a clear message to anti-abortion judges throughout the country that they can ignore high court decisions protecting abortion rights. But more than that, it would have been a signal to Republican judges throughout the country that the Supreme Court may not enforce decisions that the GOP disagrees with. Many judges would likely taken this as a cue to start freelancing, behaving as if binding Supreme Court decisions are now optional.
Today’s Gee order wards off that chaos. And it sends a clear message to lower court judges who think they can ignore the Supreme Court’s precedents: You don’t get to overrule our decisions, only we get to overrule those decisions.
That reading is consistent with Roberts’s investment in the Supreme Court’s exclusive power to set, and, if necessary, change constitutional precedents. So no one on the pro-choice side of the abortion barricades should relax for more than a moment. The case may well wind up back before the Court before long for a full review. And then we’ll find out if the new SCOTUS is indeed ready to overturn abortion-rights precedents up to and including Roe v. Wade.
