WASHINGTON, D.C., February 8, 2019 (LifeSiteNews) – Pro-life leaders and analysts are responding with concern and disappointment to the U.S. Supreme Court’s order Thursday evening to block the implementation of a Louisiana law requiring basic health and safety standards for abortion facilities, particularly regarding Chief Justice John Roberts siding with the liberal wing.
In September, a panel of the Fifth Circuit Court of Appeals ruled 2-1 in favor of Act 620, the state’s law requiring abortion centers to make arrangements for admitting women to hospitals within 30 miles in cases of life-threatening complications, and ordered a lawsuit against the law dismissed, reversing a previous ruling by a federal judge in Baton Rouge. 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.
Last night, a majority of the justices granted their application for a stay, delaying the law from taking effect pending a future ruling on the merits of the case. Trump appointees Neil Gorsuch and Brett Kavanaugh joined proven conservatives Clarence Thomas and Samuel Alito in indicating they would have rejected the stay and let the law take effect.
Most of the dissenters didn’t elaborate on their reasoning, but Kavanaugh penned a dissent that rejected the abortionists’ complaint on technical grounds, while appearing to concede their underlying premises about the “undue burden” standard.
He noted that the law has a 45-day transition period before taking effect, during which “both the doctors and the relevant hospitals could act expeditiously and in good faith to reach a definitive conclusion about whether those three doctors can obtain admitting privileges,” and therefore it was premature to block the law before competing predictions about the law’s impact have been proven or disproven.
If abortionists cannot, obtain admitting privileges, Kavanaugh continued, “even the State acknowledges that the law as applied might be deemed to impose an undue burden for purposes of Whole Woman’s Health,” and the abortionists could then bring a new case.
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.”
Others are more pessimistic. Without discussing specific justices, Susan B. Anthony List president Marjorie Dannenfelser lamented that the “Supreme Court continues a disappointing trend of avoiding their responsibility on decisions concerning abortion […] The Court should not prevent state legislators from doing the job they were elected by their constituents to do.”
Live Actions' Lila Rose said she was disappointed with the decision in a tweet.
Very disappointing that SCOTUS (5-4) temporarily blocks Louisiana’s basic regulation requiring abortionists to have hospital admitting privileges to better deal with complications.
Abortionists take the lives of children and harm the lives of women. https://t.co/wffohgIVVS
— Lila Rose (@LilaGraceRose) February 8, 2019
William Jacobson, a Cornell law professor and conservative legal commentator, concluded it was “unlikely the law ever is going to be allowed to go into effect in the current configuration of the court.”
“Remember, in the Hellerstedt case, Roberts joined with the other conservative justices to say that such regulations are totally within bounds, even under the Roe and Casey precedent of a right to an abortion. Why is he reversing himself now?” Conservative Review’s Daniel Horowitz asked.
“When lower courts issue injunctions against Supreme Court precedent, including decisions Roberts himself recently wrote, he has no problem taking a hands-off approach to those lower courts,” he continued. “But somehow, when a conservative lower court merely allows a state to mind its own business in a case that might brush up against a recent Supreme Court decision he himself disagreed with and now has the votes to overturn, Roberts parachutes in to overturn the lower court.”
Daily Wire editor-at-large and First Liberty Institute attorney Josh Hammer argued the ruling was another reminder that pro-lifers must do more to change the legal climate than simply appoint more judges:
If you are “pro-life” and simultaneously pro-judicial supremacy, then you need to wake the hell up. This is madness. It has been madness for decades. And it needs to stop.
— Josh Hammer (@josh_hammer) February 8, 2019
To lay this out explicitly:
State legislatures need to openly defy Roe/Casey. Make the Executive Branch send in enforcers to enforce erroneous SCOTUS edicts, if they’re so desperate to do.
I bet they wouldn’t do it. https://t.co/qLN7LejWGp
— Josh Hammer (@josh_hammer) February 8, 2019
Whatever their full thoughts on the matter, Roberts and Kavanaugh appear to take seriously the Hellerstedt precedent, which was seen as a major victory by pro-abortion activists and a new low for judicial activism by pro-lifers.
Despite Hellerstedt accepting the abortion industry’s narrative that admitting privileges are medically-unnecessary burdens, 32 nonpartisan medical associations – including the Federation of State Medical Boards and National Committee for Quality Assurance, and covering fields from surgery and anesthesiology to dermatology and radiology – affirmed at the time that admitting privileges are a legitimate medical standard. The pro-abortion justices also ignored the plaintiffs’ own record of health and safety violations.
Last year, a Texas Department of State Health Services report identified numerous offenses at Whole Woman’s Health from 2011 to 2017, including rusty equipment, failing to properly disinfect and sterilize instruments between use, lacking proper written operation procedures, improper storage of hazardous chemicals, unsanitary surfaces, failing to follow up with patients, holes in the floor, and more.
This week’s ruling has not reassured pro-lifers still trying to discern whether Kavanaugh, who expressed significant respect for Roe v. Wade’s status as “precedent” during his confirmation hearings, will ultimately be a reliable pro-life vote. It has also intensified pro-life doubts about Roberts, who has disillusioned conservatives ever since he voted in 2012 and 2015 to uphold Obamacare using intensely controversial reasoning.
In December, Roberts and Kavanaugh joined the court’s liberal wing in declining to hear Kansas and Louisiana’s appeals defending their efforts to cut off Medicaid funds to Planned Parenthood, a decision Thomas excoriated as “abdicating our judicial duty” because of the case’s connection to the “politically fraught issue” of abortion.