“Because the filings regarding the application for a stay in this matter were not completed until earlier today and the justices need time to review these filings,” the decision by the U.S. Court of Appeals for the 5th Circuit is temporarily stayed, wrote Justice Samuel A. Alito Jr. He is the justice responsible for receiving emergency requests from that appeals court.
The Louisiana law — passed in 2014 but never allowed to go into effect — requires any physician providing abortion services to have admitting privileges at a hospital within 30 miles of the procedure.
Even Louisiana acknowledges that the requirement is virtually identical to a Texas law that the Supreme Court voted 5 to 3 to strike down in 2016. The court said the admitting privilege requirement “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”
Hospitalization after an abortion is rare, all sides agree, and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman getting needed medical care.
But last fall, a panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the Louisiana law in a 2-to-1 vote, finding factual distinctions between how the restriction played out in Texas and Louisiana. The full court, considered one of the most conservative of the regional appeals courts, voted not to reconsiderthe panel’s decision.
The request is providing a somewhat surprising first test on the controversial issue for the reconstituted Supreme Court.
The 2016 decision, Whole Woman’s Health v. Hellerstedt, was decided by a very different eight-member Supreme Court in the wake of conservative Justice Antonin Scalia’s death.
Justice Anthony M. Kennedy joined the court’s liberals to strike down the Texas provisions. Chief Justice John G. Roberts Jr., Justice Clarence Thomas and Alito dissented.
But those three have since been joined by President Trump’s choices, Justices Neil M. Gorsuch and Brett M. Kavanaugh, both of whom were supported by antiabortion activists who said they hoped that the court’s new conservative majority might one day overturn the fundamental right to abortion the court advanced in Roe v. Wade.