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Kavanaugh Gives Mixed Signals in First Supreme Court Abortion Ruling

In a 5-4 decision, the Court issued a temporary stay of a Louisiana law that could put abortion doctors out of business.

Abaca Press/Douliery Olivier/Abaca/Sipa USA/NewscomAbaca Press/Douliery Olivier/Abaca/Sipa USA/Newscom"The Supreme Court just placed Roe v. Wade on life support," says the headline at ThinkProgress. Going from that title, you might find it hard to guess that the Court just handed down a ruling in favor of abortion access.

In a 5–4 decision, the Court temporarily blocked a 2014 Louisiana law that, by instituting a strict hospital admitting privileges system, would have left the state with just one doctor allowed to perform abortions. Chief Justice John Roberts sided with more liberal justices in moving to stay the law. The case now faces a full hearing.

SCOTUS struck down a similar Texas law in 2016.

"Under recent Supreme Court precedent, the law is pretty clearly unconstitutional, and Roberts doesn't want to overturn that precedent until the court has considered the case, June Medical Services LLC v. Gee, in detail," explains Noah Feldman at Bloomberg. It's not clear which way Roberts will go ultimately.

Much is being made of the most recently confirmed justice, Brett Kavanaugh, voting with the minority and writing his own dissent. But even that isn't quite the anti-abortion radicalism many are making it out to be.

Louisiana currently has three abortion clinics and four abortion doctors, only one of whom has the admitting privileges required by Louisiana's (yet to be enforced) law. 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). But first, suggests Kavanaugh, the doctors should try to get admitting privileges. If they can, he writes, "the Louisiana law as applied would not impose an undue burden."

"The true issue in determining undue burden shouldn't be whether the four doctors who currently perform abortions can keep on doing so," writes Feldman. "Rather, the question should be whether the Louisiana law confers any benefits relative to the cost imposed on abortion. And the reality is that requiring the doctors to have admitting privileges doesn't confer any real health benefits."

Still, Kavanaugh could have said nothing, like the other three justices in the minority. "That would have signaled he was prepared to overrule the 2016 precedent" set in Whole Woman's Health, writes Feldman. Instead, Kavanaugh's opinion suggests "that he takes the precedent seriously as currently binding law."

Somehow, from all of this, The Nation's headline writer concludes that "Brett Kavanaugh Is Already Done Pretending He Respects Abortion Rights" (subhed: "And Susan Collins is to blame"). Ian Millhiser of ThinkProgress thinks "the only realistic uncertainty is whether [the Court] will gut Roe in one fell swoop, or by a thousand cuts." Another ThinkProgress headline states ominously and confusingly: "Hope is all that's left, with Roe v. Wade in Louisiana."

Some writers on the right are also (and more understandably) seeing dire omens in the Court's decision this week. "When Justice Roberts joined the court's progressives to grant the emergency stay and temporarily block Louisiana's law while the case is pending before the Supreme Court, he did more than benignly push pause on the enforcement of the Louisiana law," writes David French at National Review. "Emergency stays are granted only when—among other factors—'there exists a significant possibility of reversal of the lower court's decision.'"

"Multiple pro-life activists were initially pleased that not only did Justice Kavanaugh join Justices [Neil] Gorsuch, [Clarence] Thomas, and [Samuel] Alito in voting against the stay, but Kavanaugh actually penned a short dissent," French continues. "But if you read the dissent, it's on the most narrow possible grounds. Essentially, he argues that there isn't yet any evidence that the Louisiana law will have any immediate effect on abortion access."

As with the justice's record on birth control, while Kavanaugh is sure to make many decisions that Democrats (and others) don't like, he probably isn't an ideologue or inclined to be an agent of radical changes.

Photo Credit: Abaca Press/Douliery Olivier/Abaca/Sipa USA/Newscom

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  • Crusty Juggler||

    Christmas tree oyster?

  • Crusty Juggler||

    Christmas tree oyster?

  • Crusty Juggler||

    "But if you read the dissent, it's on the most narrow possible grounds.

    LMFAO @ read! I will just panic, thank you very much.

  • Dillinger||

    Audrey II

  • $park¥ is the Worst||

    I'm thinking that woman isn't expecting to ever have a man in her life.

  • Ray McKigney||

    Not for longer than it takes to chew his head off, at any rate.

  • OpenBordersLiberal-tarian||

    Kavanaugh is sure to make many decisions that Democrats (and others) don't like, he probably isn't an ideologue or inclined to be an agent of radical changes

    "Sure he wants to literally establish The Handmaid's Tale in America, but he'll do it gradually"? If that's the best thing that can be said about him, I still don't want him on the Supreme Court. I voted for Hillary Clinton to get more justices like RBG. We need people on the Court who are guaranteed to uphold access to abortion care (and affirmative action, and gun safety legilation, etc.) every. Single. Time.

    #ImpeachKavanaugh
    #SaveRoe
    #SUPER-PRECEDENT

  • Dillinger||

    >>>guaranteed to uphold access to abortion care

    Roberts should feel like a coup to you maybe?

  • OpenBordersLiberal-tarian||

    "Coup" is a strong word. But Roberts certainly seems better than the dangerous right-wing extremists Drumpf has rushed through the confirmation process. Which is consistent with the idea that as bad as George W. Bush was, Drumpf is already much worse in every way.

    #LibertariansForABetterGOP
    #PutTheNeoconsBackInCharge

  • Dillinger||

    >>>better than the dangerous right-wing extremists

    dude's straight off the 18th @Rockefeller Country Club ... perfect Bushie.

  • Paloma||

    Still don't want him on the Supreme Court? Well he IS in the Supreme Court. For life hahahaha.

  • Fats of Fury||

    Channel surfing reveals biggest story of the day, "Dick Pics Nicks Prick/shits Brick."

  • Brandybuck||

    It's almost as if progressives WANT RvW overturned, just so they can say "told you so". Their whole shtick is about protecting us from eebil conservatives wanting to roll back everything, so they're not really happy unless the imagine stuff is being rolled back.

    In other news, this ruling is a nothing burger.

  • Ray McKigney||

    If it's ever overturned, donations will go through the roof.

  • Eddy||

    "he probably isn't an ideologue or inclined to be an agent of radical changes."

    Radical in this context meaning undoing the radicalism the Supreme Court has pulled off in the past. Sad that you'd buy into that upside-down definition of radicalism.

  • buybuydandavis||

    +1
    First article I've seen that made it clear (at least to me) that this was a temporary stay pending a full hearing.

    It preserves the status quo until they decide. By throwing this bone, Roberts may feel free

    Ever notice how precedents over a century old can be overturned by "penumbras", but precedents a few years old are carved in granite?

  • SQRLSY One||

    Butt ONLY true (what you say), if'n it increases the powers of Government Almighty!!!!

    One-way ratchet, is what we are dealing with, by and large...

  • SQRLSY One||

    Scienfoology Song… GAWD = Government Almighty's Wrath Delivers

    Government loves me, This I know,
    For the Government tells me so,
    Little ones to GAWD belong,
    We are weak, but GAWD is strong!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

    GAWD does love me, yes indeed,
    Keeps me safe, and gives me feed,
    Shelters me from bad drugs and weed,
    And gives me all that I might need!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

    DEA, CIA, KGB,
    Our protectors, they will be,
    FBI, TSA, and FDA,
    With us, astride us, in every way!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

  • Eddy||

    "Ever notice how precedents over a century old can be overturned by "penumbras", but precedents a few years old are carved in granite?"

    Recent decisions have that new-car smell.

  • Bubba Jones||

    Earlier reports suggested this wouldn't have much impact on access.

  • BYODB||

    Just wait until he rules on some national security cases, then we'll really see how fucking terrible he is.

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