The Supreme Court handed down a brief order Friday allowing four Louisiana abortion clinics to reopen after they were closed due to a recent decision by a conservative federal appeals court.
Last week, an especially conservative panel of the United States Court of Appeals for the Fifth Circuit handed down an “emergency” decision permitting an anti-abortion Louisiana law to go into effect. Under this law, physicians cannot perform abortions unless they have admitting privileges at a nearby hospital — an increasingly common requirement masterminded by an anti-abortion group that drafts model bills for state legislatures. A challenge to a similar Texas law is currently pending before the justices.
The Supreme Court’s order temporarily suspends the Louisiana law, effectively preventing the Fifth Circuit’s Wednesday decision from taking effect. Only Justice Clarence Thomas explicitly dissented from the Court’s order.
Monday’s order from the Supreme Court is not surprising — indeed, the most surprising thing is that the Fifth Circuit permitted the Louisiana law to briefly take effect despite clear signals from the Supreme Court that they should not do so. The justices twice stayed Fifth Circuit decisions permitting Texas’ similar, if more comprehensive, anti-abortion law from taking effect. The first time, the Supreme Court issued a partial stay permitting two clinics to be exempt from Texas’s new credentialing requirements for abortion doctors. The second time, the justices handed down a more comprehensive stay of what may be the Fifth Circuit’s most aggressive anti-abortion decision.
The Supreme Court heard oral arguments in the Texas case, Whole Woman’s Health v. Hellerstedt, this Wednesday. During those arguments, conservative Justice Anthony Kennedy appeared open to striking down the Texas law — although he also seemed concerned with a procedural issue unique to that case. The Court’s decision to halt the Louisiana law is another sign that the conservative-but-not-absolutist justice believes that laws like the ones in Texas and Louisiana may go too far.