In a 5-4 decision, the Supreme Court ruled Thursday that it will not allow Louisiana to enforce its law requiring abortion doctors to have admitting privileges at nearby hospitals, while the case against it continues.
Supreme Court Justice Brett Kavanaugh is asking a good question: Why should Louisiana refrain from enforcing an abortion law, which plaintiffs are saying is impossible, when the three doctors at issue haven’t tried to obey it?
In Kavanaugh’s dissent, he said the case “largely turns” on whether Louisiana’s three doctors who provide abortions can get the admitting privileges the law requires in the next 45 days. He argues that it makes logical sense that they should be allowed to try do do that, while the law is in effect, and if they can’t, then the plaintiffs could challenge the law based on that failure. (To its credit, Louisiana even said it would not try to “aggressively enforce the law.”) If the doctors get admitting privileges, all of the clinics can keep doing abortions, and Louisiana gets to keep its law protecting women. Everyone wins.
Some avid pro-lifers might want to interpret Kavanaugh’s dissent as a method of tiptoeing into the waters of abortion without causing too many waves. It’s not. Kavanaugh didn’t argue in his dissent about the merits of Roe v. Wade or abortion. But this shouldn’t disappoint pro-life advocates. Kavanaugh stuck to dissenting about the procedural issue at stake, which is whether or not a law that’s already in place should go forward, while the people most affected by the law, abortion doctors who need to get admitting privileges, figure out if they can or should abide by it. It makes sense logically, practically, and procedurally.
If the court had ruled the way Kavanaugh described in his dissent, it actually would have allowed more of a litmus test for abortion advocates. If the law had been allowed to go into effect, it would have forced the plaintiffs to face the issue at hand: Are three doctors really unable to get admitting privileges at hospitals in 45 days?
The majority decision, on the other hand, came as a surprise to conservatives: Chief Justice John Roberts joined the more liberal justices in granting the stay. While some liberals are saying that Roberts “just placed Roe v. Wade on life support,” this doesn’t appear to be a landmark decision for or against abortion. Rather, this decision demonstrates that judges are looking at the facts of each case and making decisions based on them.
If Roe is to be overturned, it must be done on the merits of the right kind of case that challenges it — so that legally the Supreme Court retains its judicial authority.
