Lawyers representing a Louisiana abortion clinic and at least two physicians filed an application in the Supreme Court on Monday asking the court to halt a Louisiana law that is identical to a Texas law the justices struck down in 2016.
The court is almost certain to deny this application in a 5-4 vote — possibly as soon as tonight. When it does so, it will effectively mark the end of Roe v. Wade.
Yes, the court is very unlikely to hand down an opinion this week which uses the words “Roe v. Wade is overruled.” But these abortion providers filed this application because a federal appeals court openly defied the Supreme Court’s most recent abortion decision. When the court refuses to enforce its own decision, that will send a clear signal to lower court judges throughout the country that they are free to uphold restrictions on abortion.
The case is June Medical Services v. Gee.
Gee involves a Louisiana law requiring “a physician performing or inducing an abortion” to “have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” If that law sounds familiar, that’s because it is identical, almost word-for-word, to a Texas law that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt.
Whole Woman’s Health was a 5-3 decision, however, and the Supreme Court now looks very different than the court that struck down the Texas law in 2016.
The Texas decision was decided by an eight justice panel because the death of Justice Antonin Scalia left a vacancy on the court — and Senate Republicans held that seat open until a Republican president could fill it with the archconservative judge Neil Gorsuch. Then, in 2018, Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, who is nearly as conservative as Gorsuch.
With Roe‘s demise now almost certainly inevitable, a panel of the United States Court of Appeals for the Fifth Circuit upheld the Louisiana law — apparently because they felt confident that such open defiance of the Supreme Court would not be reversed.
Judge Patrick Higginbotham, a Reagan appointee, didn’t just dissent from the Fifth Circuit’s decision, he outright accused his colleagues of ignoring the Supreme Court’s commands. “The majority today fails to meaningfully apply the undue burden test as articulated in Casey and clarified in Whole Woman’s Health,” Higginbotham wrote, “and fails to give the appropriate deference to the district court’s opinion, essentially conducting a second trial of the facts on this cold appellate record.”
In fairness, there is an off chance that at least one member of the Supreme Court’s Republican majority will balk at the Fifth Circuit’s open contempt for a binding precedent.
UNLESS Roberts puts his disagreement w/ the outcome of Hellerstedt to one side & observes that the LA law is blatantly inconsistent with it.
Roberts may eventually vote to overrule Hellerstedt on the merits, but he'll do it the old-fashioned way. Maybe not by denying the stay. https://t.co/EirSYdcWyY
— Steven Mazie (@stevenmazie) January 28, 2019
The smart money, however, will bet that the court will vote along party lines to deny a stay of the Fifth Circuit’s decision. Just last May, while Kennedy was still on the court, the Supreme Court allowed an Arkansas anti-abortion law to take effect despite the fact that a lower court decision upholding that law was also at odds with Whole Woman’s Health. And the court has only grown more anti-abortion since May.
Should the Supreme Court deny a stay in the Gee case, moreover, anti-abortion judges will know exactly what that means. It will be a clear signal that they can emulate the Fifth Circuit and openly defy Supreme Court decisions protecting a right to abortion.
Roe v. Wade will die a quiet death, and the Supreme Court won’t even have to kill it.