Analysis Law and Policy

We Can Thank Kavanaugh for Roberts’ Decision to Temporarily Block Louisiana’s Anti-Abortion Law

Jessica Mason Pieklo

Thursday's Supreme Court order means that, for now at least, abortion access in Louisiana has not yet been further compromised.

On Thursday night, the U.S. Supreme Court temporarily blocked a Louisiana abortion law just hours before it was due to take effect. The law was nearly identical to the Texas provision the Court had declared unconstitutional two and a half years prior.

Chief Justice John Roberts joined his liberal colleagues in the 5-4 decision on the admitting privileges statute. Justice Brett Kavanaugh, the man who assured Sen. Susan Collins (R-ME) that he would never undermine abortion rights, dissented, arguing the law should be allowed to take effect.

Thursday’s decision offers a temporary reprieve for abortion rights advocates—especially in Louisiana, where the law would have winnowed the number of abortion providers in the state down to one. If precedent means anything, then Whole Woman’s Health v. Hellerstedt has already determined that the Louisiana law is unconstitutional. And Thursday’s order means that, for now at least, abortion access in Louisiana has not yet been further compromised.

Yet it is unavoidable that the fate of reproductive autonomy as a fundamental right rests in the hands of one man: Chief Justice John Roberts.

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The law at issue, Act 620, would require any physician providing abortion services in Louisiana to have admitting privileges at a hospital within 30 miles of the procedure. If that sounds familiar, it should. Act 620 was modeled specifically after the provisions in Texas’ HB 2 that were eventually declared unconstitutional in 2016. In that case, Chief Justice Roberts was in the minority; he would have upheld the Texas provision.

So what explains the differences in the vote? Has the chief justice had a change of heart and grown to understand that abortion rights without access are meaningless? Does Thursday’s vote signal that Whole Woman’s Health v. Hellerstedt is more enduring as a precedent than its mere two and a half years might suggest?

The difference is Justice Brett Kavanaugh.

First, let’s get a few details out of the way. Chief Justice John Roberts has never cast a unilaterally pro-choice vote, and I don’t expect him to anytime soon. His vote Thursday was not a vote for abortion rights as much it was a message to the lower courts to “knock that shit off” in trying to unilaterally undercut Supreme Court precedent by ignoring Whole Woman’s Health v. Hellerstedt and not going through the proper channels. If Whole Woman’s Health is going to be overturned, in other words, a rogue Fifth Circuit Court of Appeals won’t be the one to do it. It will be the Roberts Court that does it, after oral arguments and deliberation.

The Fifth Circuit’s decision to allow the Louisiana law to take effect, is, as my colleague Imani Gandy explains here, bonkers. That decision, and the subsequent refusal to hear it en banc, is a perfect example of the courts going off on its own to advance a political agenda—in this case, an anti-choice one. Thursday’s order from the Supreme Court offers nothing as to the merits of the Louisiana law, which means that for all we know, Roberts’ opinion on the constitutionality of such measures hasn’t changed at all from his 2016 Whole Woman’s Health vote.

Thursday’s vote was about process. Attorneys from the Center for Reproductive Rights, the advocacy organization representing the plaintiffs challenging the law, initially asked the Roberts Court to stay, or pause, the Fifth Circuit decision while they filed their cert petition asking the Court to consider taking the case. The law has been blocked since litigation began, so issuing the stay effectively changes nothing in terms of the immediate legal landscape. By that measure, Roberts took the conservative path: He voted to maintain the status quo.

And because the order isn’t a decision on the merits of the Louisiana law, it’s not a true test of Whole Woman’s Health’s strength as precedent. That will come later, when the Court decides if it will take the case. As I said earlier, I don’t expect Roberts to cast a pro-choice vote when it counts. But by voting for the stay now, Roberts can control how that vote to undercut Whole Woman’s Health—and by extension, Roe v. Wade—happens. And it will likely happen next term.

If Roberts is so intent on undermining abortion rights, why the drama? Why not just vote to let the Louisiana law take effect now if he’s just going to do so later? Again, I think the answer to that question is Brett Kavanaugh.

June Medical Services v. Gee is the first abortion rights case to come before the Roberts Court since Kavanaugh’s embarrassing confirmation fight—and no, the Planned Parenthood Medicaid funding case doesn’t count, Susan Collins. Roberts may be content to rule on behalf of conservative causes, but as chief justice, he really has tried to stay out of the political spotlight, sometimes to the ire of conservatives. Casting the obvious political vote to deny the stay now, with Kavanaugh on the bench, would have been the death knell in any remaining appearance of Roberts as an independent jurist. It would have placed Roberts right alongside the justice who accused the Clintons of running a political hit campaign against his Supreme Court nomination once credible allegations of sexual assault against him surfaced.

Kavanaugh’s dissent proves this point. In it, he says he would have let the law take effect and deny the stay without prejudice—meaning that if all providers but one were not able to comply with the statute, then the plaintiffs could re-file their request. In other words, Kavanaugh would let play out in Louisiana what originally played out in Texas before the Supreme Court eventually blocked HB 2—and thousands of people who needed abortions would have found themselves scrambling or unable to access them entirely.

Kavanaugh appears to concede that losing all but one provider would likely be an undue burden on abortion rights, an argument I suppose we may see arise should the Court ultimately grant Gee. But the substance of his dissent doesn’t really matter. It’s the fact that he made it at all. Kavanaugh is on the Supreme Court because he pinky-swore Susan Collins he’d uphold Roe. 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.

Let me be very clear here. Kavanaugh didn’t have to write this dissent. He could have sat the first round of abortion rights fight at the Court out, especially considering his hyper-political confirmation process. But he didn’t. It’s hard not to read Kavanaugh’s decision to author Thursday’s dissent as a political rather than a legal one: assurance to those benefactors other than Collins that he’s a safe anti-choice vote.

As a result of Thursday’s order, Act 620 will remain blocked while the Court considers taking the case on the merits. Should the Court agree to hear the case, arguments would likely happen in the fall.

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