Supreme Court Blocks Louisiana Abortion Law
DAVID GREENE, HOST:
The Supreme Court last night blocked the state of Louisiana from implementing a restrictive abortion law. This law could still go into effect eventually once the court rules on its constitutionality. But for now a victory for abortion rights supporters who feared this law could close most of Louisiana's health clinics that perform abortions. The newest justice on the court, Brett Kavanaugh, dissented, saying this law should go into effect. Let's talk about this with Supreme Court reporter Amy Howe, who is with us. Good morning, Amy.
AMY HOWE: Good morning.
GREENE: So let's talk about the potential impact of this law. I mean, opponents were warning that it could make it nearly impossible to get an abortion in Louisiana, right?
HOWE: That's right. They said that if the law were allowed to go into effect, there'd be only one doctor in the whole state who could provide abortions in the early stages of pregnancy - through 17 weeks - and none at all after 17 weeks. And the other thing they said - that if clinics closed because the law went into effect, even if the law were later struck down - that the clinics probably wouldn't be able to reopen.
GREENE: Well, so the court blocked the law from going into effect yesterday. But as I mentioned, that might not be the end of the story. The court's going to return to this.
HOWE: That's right. All that was - you know, there was a lot at stake. But all that the Supreme Court was deciding last night was whether or not the law was going to be able to go into effect while the opponents of the law now file a petition for review, asking the Supreme Court to weigh in on whether or not the law is, in fact, constitutional. So they'll file a petition for review, in all likelihood. The state will file a brief opposing review. The Supreme Court will decide whether or not it's going to weigh in. And then they'd hear oral arguments, in all likelihood, in the fall or winter of this year and would issue a decision next year - in 2020.
GREENE: So sounds like - I mean, one thing we do know is that abortion is going to remain very front and center on this court in the next year or so.
HOWE: That's right. I mean, in all likelihood, they'll be issuing a decision in probably June of 2020, when the presidential campaign is in full swing. So it's going to be...
GREENE: The thick of the presidential election.
HOWE: ...In the thick of the presidential election. It's going to be - it's always a hotly watched issue at the Supreme Court but particularly during a presidential campaign.
GREENE: Yeah - because, I mean, it's so important to - it's an issue that's so important to the bases and both parties, certainly. Can I ask you about the dynamics on the court? This was a close vote, 5-4. Chief Justice John Roberts sided with the four liberal justices on the court. Was that a surprise?
HOWE: Yes and no. I mean, the opponents of the law needed five votes to get what's called a stay - to keep the law from going into effect. The conventional wisdom was that if they were going to get a stay, the fifth vote was going to have to come from the chief justice, John Roberts, who's sort of the new swing vote on the court since the retirement of Justice Anthony Kennedy last year. On the other hand, a little bit less than three years ago in 2016, Justice Kennedy joined the four more liberal justices in striking down a very similar law from Texas. And in that case, Roberts was in dissent. So no one was certainly taking his vote for granted in this case.
GREENE: Huh. So why would he have voted differently on a law that is very similar?
HOWE: I mean, we don't know what his reasoning was because, you know, neither he nor the four more liberal justices who voted for the stay wrote anything. Only Justice Brett Kavanaugh wrote anything. You know, one factor that weighs heavily in deciding whether to grant a stay is whether the court is likely to grant review and reverse the lower court's ruling upholding. And he's an institutionalist. So it may well be that even if he didn't agree with the court's ruling, you know, a little bit less than three years ago, you know, he may believe that it's now settled law, and the Supreme Court needs to respect that, even if he didn't necessarily agree with it at the time. We don't know. You know, we're likely to find out in a year or so.
GREENE: And just summarize, if you can, Brett Kavanaugh's dissent saying, basically, this law should go into place.
HOWE: Yeah. From his view, the central legal question in the case was whether this requirement that doctors have admitting privileges is - you know, hinges on a factual question, whether or not the three doctors in the case can actually get admitting privileges. And that's something that's disputed. And so he said, instead of putting the law on hold, let's figure it out because if they can get admitting privileges, it may not be that the law is unconstitutional. If they can't, they can come back to the court. And from his view, that would actually be faster than doing it the way that the court is now - is likely going to do it, in which we probably get a ruling on the constitutionality of the law in 2020.
GREENE: All right. Amy Howe reports on the Supreme Court for SCOTUSblog. Thanks, Amy.
HOWE: Thanks for having me.
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