Heritage sees silver lining in SCOTUS blocking abortion law

Monday, February 11, 2019
Chris Woodward (OneNewsNow.com)

Chief Justice John RobertsA public policy group says it's highly likely the Supreme Court will review a lower court's ruling on a Louisiana abortion law that's been making the rounds in courts for more than four years.

The 2014 law in Louisiana sought to require doctors performing abortions to have admitting privileges at a nearby hospital. In 2016, the U.S. Supreme Court struck down a similar law in Texas, but the Fifth U.S. Circuit Court of Appeals has more recently ruled in favor of Louisiana's "Unsafe Abortion Protection Act" (Act 620).

"An abortion clinic had asked the Supreme Court to put a halt on the law from going into effect because the lower court had upheld the law," says Elizabeth Slattery, legal fellow for The Heritage Foundation. "The clinic is going to be asking the Supreme Court to take the case and review the lower-court ruling, so the fact the Supreme Court agreed [last week] to halt the law is a pretty good sign that they're going to review the lower-court ruling."

Late last Thursday, Chief Justice John Roberts (pictured above) sided with liberals (5-4) in halting the law for the time being, but Slattery contends that has nothing to do with Roberts' views on the merits of the case.

"This [type of decision] is common from district court judges all the way up to the Supreme Court where they will try to preserve the status quo while litigation is pending," she explains. "So from the perspective of at least five of the justices, they thought it was best to not let the law go into effect – and they will most likely take up the case and hear it in their next term, which starts in October." (Read Slattery's article on last week's decision)

In 2016, Chief Justice Roberts sided in favor of the Texas law.

President Donald Trump's two Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, were among the four conservative members of the court who would have allowed the Louisiana law to take effect. Still, Slattery says it's too early to tell how any of the justices are going to vote.

"What he [Kavanaugh] said was the Louisiana law already has what's known as a regulatory transition period built into it," she says. "So he [Kavanaugh] said, Let's let it go into effect, let's see if these doctors are able to get admitting privileges and comply with the law; and if they are, then there is no reason to continue with the challenge."


Meanwhile, Slattery says the recent appeals court ruling on Louisiana's law did take into account what the U.S. Supreme Court said in 2016 about the Texas law.

"The Texas law … wanted doctors who are performing abortions to have admitting privileges at a nearby hospital and abortion clinics to have the same standards as other ambulatory surgical centers," says Slattery. "So it would require a lot of modifications and a lot of these centers just said that they'd have to close down because they couldn't afford it."

The appeals court also talked about the differences with how the Louisiana law would operate compared to the one in Texas.

"Obviously the state of Louisiana is much smaller than the state of Texas – and one of the problems that the Supreme Court identified with the Texas law was that it would effectively close down 32 of the state's 40 clinics, which would then require women to drive distances of 150 miles or more in order to obtain an abortion," she explains. "In Louisiana, it's much smaller. None of the clinics have had to close down because this law is on the books."

Read Slattery's 2016 report:
Abortion, Admitting Privileges, and the Supreme Court

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