WASHINGTON — Louisiana’s law requiring physicians who perform abortions at clinics in the state to have admitting privileges at a nearby hospital will be kept on hold while the case against it proceeds, the Supreme Court ruled in a 5–4 decision on Thursday.
Chief Justice John Roberts joined the four more liberal justices in granting the stay.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all noted that they would not have granted the stay, and would let the law take effect while the case moves forward. Only Kavanaugh, though, provided a written statement about his reasoning, and in it, he suggested that he could, in theory, have agreed to a stay at a later point before the law's effects would be felt.
The order is not a final decision on the constitutionality of the state’s law, which was passed in 2014, so it was not immediately clear whether Roberts' vote on the Thursday night ruling — which has the effect of keeping in place the status quo in Louisiana while the case can be resolved — would carry over to the case itself should the justices hear it.
The decision nonetheless comes at a moment of change for the court and represents its first major ruling related to abortion since President Donald Trump began changing the faces on the Supreme Court. Two Trump nominees, Gorsuch and Kavanaugh, have joined the high court in the past two years — and retired Justice Anthony Kennedy, long the decisive vote on such cases, has left.
The Louisiana law is virtually the same as a Texas law struck down by the court in a 5–3 decision in June 2016.
Despite that, the US Court of Appeals for the 5th Circuit ruled in a 2–1 decision that the facts underlying the Louisiana law and the challenge to it are substantially different from the case in Texas and, as such, ruled in favor of the state. The court refused to put its ruling on hold, leading the challengers to ask the Supreme Court to issue a stay, halting implementation of the law, while they ask the justices to take up an appeal of the case.
The clinic and doctors challenging the law, led by June Medical Services, argued that the 5th Circuit’s ruling was an “extraordinary decision” that “is in direct conflict” with the Supreme Court’s decision in the Texas case, Whole Woman’s Health v. Hellerstedt.
It also argued that allowing the law to be implemented will “cripple abortion access in the state” and that keeping the law on hold while the case proceeds would preserve the current legal landscape in the state because the law “has been enjoined since its enactment in 2014.”
In responding to the request, lawyers for Louisiana, who include state attorneys and an outside counsel led by prominent conservative Supreme Court lawyer Gene Schaerr, argued that the case would not likely merit Supreme Court review and so the law should not be put on hold while the challengers seek that review.
Specifically, they argued that the appeals court decision did not conflict with the Whole Woman’s Health decision, but instead was a fair application of that decision based on the 5th Circuit’s “close review of a massive record” from the district court.
Thursday night's ruling will, therefore, keep the law on hold while the challengers seek Supreme Court review and, then, until the case is resolved.
Kavanaugh wrote that he would not have granted the stay because "the status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period" where the law is implemented. He noted that he would deny the stay now — but would not deny the challengers the ability to later seek an injunction "at the conclusion of the 45-day regulatory transition period" if the lower court's conclusions about "the doctors’ ability to obtain admitting privileges proves to be inaccurate."
The Center for Reproductive Rights celebrated the court's move.
"The Supreme Court has stepped in under the wire to protect the rights of Louisiana women," Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. "The three clinics left in Louisiana can stay open while we ask the Supreme Court to hear our case. This should be an easy case — all that’s needed is a straightforward application of the court’s own precedent."
Ema O'Connor contributed reporting to this story.