WASHINGTON, DC – The Supreme Court issued a temporary stay on Thursday night of a lower court order blocking a Louisiana law that would have required abortion doctors to have admitting privileges at a nearby hospital.
This stay lasts only until the Court votes on whether to take this case and does not necessarily signal which way the Court will vote on what could be an early abortion case of the new Supreme Court.
Louisiana adopted Act 620 in 2014, requiring doctors performing abortions to have privileges to treat patients within a 30-mile radius. That way, if an abortion is botched, the physician can stay with the woman to provide continuity of care at a hospital.
The statute has been tied up in litigation since that time.
A federal district judge in Louisiana held that the Supreme Court’s 2016 decision Whole Woman’s Health v. Hellerstedt (WWH) meant that Act 620 violated a woman’s right to abortion, which the Supreme Court declared for the first time in Roe v. Wade (1973) was a right implicit in the U.S. Constitution.
The U.S. Court of Appeals for the Fifth Circuit reversed it, holding in a 2-1 decision that this Louisiana law was different than the Texas law invalidated in WWH and that this law does not run afoul of Supreme Court precedent.
The full Fifth Circuit then denied abortion providers’ petition to rehear the case en banc with all of the court’s current judges involved.
Abortion lawyers then applied to the U.S. Supreme Court to grant an emergency stay while they prepared a petition for certiorari to request that the nation’s highest court hear their case.
Late Thursday, the Supreme Court granted that stay by a 5-4 vote. Chief Justice John Roberts sided with the liberal wing of the Court in that vote.
One reason to grant a stay is because there is a substantial likelihood that the Court will ultimately take the case and then reverse the lower court. If so, this stay is a bad sign for pro-life forces.
But there are other possible explanations. One possibility is the danger of irreparable harm. The petitioners argue that almost all abortion clinics in the state would close while the matter is pending in the Supreme Court and that the justices should keep the law from going into effect during that time.
Justice Brett Kavanaugh wrote a dissent from granting the stay.
“The law has not yet taken effect, so the case comes to us in the context of a pre-enforcement facial challenge,” he noted, explaining that there could always be a later challenge if necessary when the law went into effect.
“I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint … at the conclusion of the 45-day regulatory transition period,” he continued.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch likewise dissented from granting the stay.
This stay will last until the Court receives a petition for review and votes on it. If the Court agrees to take the case, the stay would also continue until the Court hands down a final decision.
The annual cutoff for cases has passed, so this matter would be heard late this year, with a decision likely in early 2020.
The case is June Medical Services v. Gee and the application for a stay is 18A774 at the Supreme Court of the United States.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.