'Shadow docket' rulings reveal new alliances on Supreme Court
- Author: Jon Douglas Feb 11, 2019,
Feb 11, 2019, 0:45
The Louisiana law, like the one in Texas ruled unconstitutional three years ago, required any doctor performing an abortion in the state to have professional privileges to admit patients to a hospital within 30 miles of the abortion clinic. When John Roberts voted to uphold President Obama's Affordable Care Act in a 5-4 ruling that squashed a transparent political maneuver by the conservatives on the Court and their allies in the lower courts, it became clear that the Chief Justice was very concerned about people losing their faith in the Supreme Court's legitimacy.
Associate Justice Brett Kavanaugh wrote a dissenting opinion on the case, arguing that the law should have been allowed to go into effect because the state had agreed to extend an additional 45 days for abortion doctors to obtain admitting privileges, the Associated Press reported. Kavanaugh's opinion argues that if the other three doctors aren't able to get admitting privileges, that could present an "undue burden" to abortion access (the standard set up under Roe v. Wade and recently affirmed in the Texas case, Whole Woman's Health v. Hellerstedt). The law was almost identical to a Texas case the supreme court struck down in 2016. The case was the first abortion-related decision that Justice Brett Kavanaugh has decided on since joining the court a year ago.
The U.S. Court of Appeals for the Fifth Circuit reversed it, holding in a 2-1 decision that this Louisiana law was different than the Texas law invalidated in WWH and that this law does not run afoul of Supreme Court precedent. "But we're always looking to see how we can protect the health and safety of women in our state", said Clapper.
Now, that Louisiana law may be heading to the Supreme Court. If they're going to eventually uphold the Louisiana law anyway, it's much better not to be so obvious that they're just out to destroy abortion rights wherever they can. So the law that the Supreme Court enjoined is not as sweeping as some of the options that the court would have in terms of potential test cases.
A panel of the U.S. Court of Appeals for the 11th Circuit earlier this week stopped the execution and ordered expedited briefing in the case. That may sound innocuous, but it's a TRAP (Targeted Restriction of Abortion Providers) law aimed at shutting down abortion clinics.
NARAL Pro-Choice America President Ilyse Hogue, while relieved by the court's vote, said it "illustrates a sobering reminder: The thread that women's rights hang by is dangerously thin".
If Louisiana's law is allowed to stand it will have an impact far beyond Louisiana. The law was challenged nearly immediately upon passage and had been held from taking effect by legal challenges since it was passed.
That the case made its way to the USA supreme court at all shows the power of federal appeals court judges, which the Trump administration has made a priority of confirming. That vote, though, likely had nothing to do with abortion and everything to do with Justice Roberts understanding his job.
A liberal group named Demand Justice said Friday it planned to launch digital advertisements against Collins soon because of Kavanaugh's ruling on the abortion case. If they are unable to do so, he said, it may be that the law would have a significant burden on women's abortion rights by limiting their access to clinics legally able to perform the procedure. Chief Justice William Rehnquist had been a fierce critic of the Supreme Court decision that requires police officers to advise arrestees of their Miranda rights to remain silent and have a lawyer represent them.
With the injunction, the Supreme Court will likely be forced to consider the law in an upcoming session.