'Shadow docket' rulings reveal new alliances on Supreme Court

'Shadow docket' rulings reveal new alliances on Supreme Court

'Shadow docket' rulings reveal new alliances on Supreme Court

"Louisiana is poised to deny women their constitutional right to access safe and legal abortion with an admitting-privileges requirement that every judge in the proceedings below - the District Court, the panel majority and the dissenters - agrees is medically unnecessary", wrote the clinics and physicians challenging the law in their application to the Supreme Court.

Hope Medical Group challenged the law's requirement that doctors who perform abortions must have an arrangement called "admitting privileges" at a hospital within 30 miles (48 km) of the clinic.

Supreme Court Chief Justice John Roberts joined the four liberal justices, and Justice Brett Kavanaugh, the newest member of the court, wrote a dissent. For instance, a convicted bank robber can appeal to a circuit court, but not on the basis that she didn't do it because she was in another city at the time of the robbery: That question has already been decided at the trial court level: She was at the bank. But even if this win holds, the case shows the plan of attack that the justices, and right-wing legal activists, could use to neuter Roe v. Wade, cautions law professor Leah Litman in a new Washington Post editorial. Which means he will nearly certainly vote to uphold the Louisiana law once the court hears it in full. "By contrast, if the three doctors can not obtain admitting privileges, then one or two of the three clinics would not be able to continue providing abortions".

The Supreme Court could decide this spring whether to add the case to their calendar for the term that begins in October.

And that, says Litman, is the ideal cover for conservative judges to use for the next novel anti-abortion regulation that comes along. "And if so, then the new law would not impose an undue burden".

"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.

Responding to the news, Americans United for Life attorney Rachel Morrison framed the decision as simply giving the justices "more time to look at all of the specific factual nuances in the case", after which "AUL is confident that the Justices will vote to uphold Louisiana's common-sense safety measure that will protect Louisiana women from substandard abortion doctors".


In his dissent, Kavanaugh cited the law's 45-day window for doctors to obtain the admitting privileges to stay within the law.

Kavanaugh and Justice Neil Gorsuch, Trump's two high-court appointees, are among six Trump-nominated judges who voted to let the law take effect, a sign that the president is carrying through on a campaign pledge to put abortion-rights opponents on the bench.

While four justices dissented, Kavanaugh penned the dissent (pdf). It was a victory, although perhaps a temporary one, for abortion rights supporters. Then, in January, Roberts voted with the conservatives to allow restrictions on military service by transgender individuals to be put in place. And yet. Not only is his first abortion rights vote to do the opposite, he authors the dissenting opinion, inviting states to ignore abortion rights precedent like Whole Woman's Health. Attorneys representing abortionists appealed to the Supreme Court, arguing the law is no different from the Texas law the Supreme Court struck down in 2016's Whole Woman's Health v. Hellerstedt. "Here, only one doctor at one clinic is now unable to obtain privileges", Judge Jerry Smith wrote for the panel, reported the Wall Street Journal.

In a press release, Demand Justice said it is also running "static Facebook ads reminding Mainers of Collins' vote for Kavanaugh". "I urge the Supreme Court to act quickly in this matter, so Louisiana may move forward".

After decades of relative stability under the court-imposed Roe precedent, the ground on abortion rights in the U.S. could be shifting.

Advocates are now asking the supreme court to hear the case next fall.

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