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Supreme Court Takes First Abortion Rights Case With Kavanaugh on the Bench

This will test the strength of Chief Justice John Roberts’s stated dedication to upholding Supreme Court precedent.

Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing-in in the East Room of the White House on October 8, 2018, in Washington, D.C.

The U.S. Supreme Court announced Friday it would hear its first major abortion rights case since Justice Brett Kavanaugh joined the bench, in a case challenging a clinic shutdown law in Louisiana.

The case threatens to upend the 2016 decision in Whole Woman’s Health v. Hellerstedt, which struck down parts of a Texas law meant to shut down abortion clinics. It could also affect the ability of clinics and doctors to sue on behalf of their patients to block abortion rights restrictions.

June Medical Services v. Gee challenges Louisiana’s Act 620, a law passed by the state’s Republican-dominated legislature requiring doctors who provide abortions to have admitting privileges at a local hospital — a regulation identical to a Texas provision declared unconstitutional three years ago by the Roberts Court in Whole Woman’s Health.

The fight over Act 620 has bounced around the federal courts for years. Former Gov. Bobby Jindal (R) signed Act 620 into law in June 2014. The law was scheduled to go into effect on September 1, 2014, giving doctors only 81 days to obtain the privileges. Attorneys from the Center for Reproductive Rights (CRR) sued in August 2014, arguing the act was impossible to comply with and unduly burdened abortion rights. A federal court issued a temporary restraining order that month, allowing the provision to take effect but blocking enforcement while doctors tried to meet the requirement.

The district court temporarily blocked the law again in 2016 before permanently blocking it in April 2017, ruling it was unconstitutional. Attorneys for the state of Louisiana appealed to the Fifth Circuit Court of Appeals, which reversed the lower court and ruled Act 620 could take effect, in a rogue decision that effectively declared the Whole Woman’s Health ruling was limited to the fight over clinic closure laws in Texas. In February, the Roberts Court issued an emergency order pausing that Fifth Circuit decision while advocates prepared their petition for review to the Supreme Court. Advocates filed for review and asked the Supreme Court to simply reverse the Fifth Circuit, since it was in such conflict with the underlying precedent of Whole Woman’s Health.

On Friday, though, the Court declined to summarily reverse the Fifth Circuit, and instead granted review of the entire case. Had the Court summarily reversed the Fifth Circuit, then the lower court decision to block Act 620 would stand and the fight over the law would be effectively over. Friday’s decision by the Roberts Court means there is still a chance the law could take effect and threaten clinics around the state.

“Louisiana has tried everything under the sun to decimate access to abortion care,” Kathaleen Pittman, clinic administrator at Hope Medical Group, a plaintiff in this case, said in a statement. “The situation here is already dire and this law would be the last straw for most of the remaining clinics. We’re hopeful that the Court will recognize how devastating this law would be for women in our state.”

The Court also granted a request by the state of Louisiana to reconsider whether abortion providers have standing in this context to challenge abortion rights restrictions. That means when the Court hears arguments early next year, it will be considering both whether the Whole Woman’s Health precedent extends to clinics beyond Texas and whether abortion providers are able sue on behalf of patients to block abortion rights restrictions.

“Nearly all abortion cases today are brought by medical providers,” Julie Rikelman, senior litigation director at the Center for Reproductive Rights, said in a statement. “If they couldn’t fight for their patients’ rights, many of these cases would never make it to court, which is precisely why Louisiana is making this argument. This is part of a coordinated national strategy to undermine women’s rights. What’s more, Louisiana’s challenge to third-party standing could have sweeping implications for civil rights, not just abortion, shutting the courthouse door to entire classes of people.”

June Medical Services not only tests the strength of abortion rights precedent, it will test the strength of Chief Justice John Roberts’ stated dedication to upholding Court precedent. The Whole Woman’s Health decision is only three years old, and the only difference between that case and June Medical Services is that Kavanaugh has replaced Justice Anthony Kennedy on the Supreme Court and conservatives feel that now is their moment to strike and undermine abortion rights law any way they can. June Medical Services is the first real test of their theory, and all eyes will be on Roberts to see if his fidelity to anti-choice politics wins over his stated fidelity to the rule of law.

The Court decided to take June Medical Services following a Tuesday conference on the case. It has not yet scheduled oral arguments, but they are expected to take place early next year, with a decision likely in the summer.

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