Chief Justice John Roberts joined the Supreme Court’s liberal wing on Thursday in temporarily blocking a Louisiana law that would have placed restrictions on abortion clinics, in the high court’s first major ruling on abortion since the confirmation of Associate Justice Brett Kavanaugh.
The justices decided in a 5-4 vote that they will not allow the state to put into effect a law that requires abortion providers to have admitting privileges at nearby hospitals. The Supreme Court is set to issue a final ruling on the merits of the case later.
The court’s four more conservative justices, including Neil Gorsuch and Kavanaugh, would have allowed the law to take effect. Kavanaugh wrote a dissent explaining his vote, saying the court’s action was premature because the state had made clear it would allow abortion providers an additional 45 days to obtain admitting privileges before it started enforcing the law.
If the doctors succeed, they can continue performing abortions, but if they fail, they could return to court, Kavanaugh wrote.
The law was set to take effect Monday, but last Friday, Justice Samuel Alito temporarily halted its implementation so that the justices could review arguments.
This is classic Kavanaugh. On the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh had a penchant for pretending to apply Roe while finding arbitrary reasons to uphold abortion restrictions. Kavanaugh let the Trump administration prevent an undocumented minor from terminating her pregnancy, on the laughable theory that she could find a sponsor who would remove her from government custody, where she could reassert control over her body. It was a pseudo-moderate procedural solution that had the effect of denying the undocumented minor abortion access altogether. Here, Kavanaugh made the same play, pretending like he’d found a reasonable middle ground that, in reality, serves to rubber-stamp unconstitutional abortion laws.
No one should mistake Kavanaugh’s dissent as a genuine compromise. There will always be a way to uphold an abortion law while insisting that somehow, someday, women might still find a legal way to terminate their pregnancies. This kind of maneuvering is alarming, as it could allow the Supreme Court to chip away at Roe without the public paying much attention. At least for now, Roberts is inclined to adhere to Whole Woman’s Health, perhaps out of a concern for institutional legitimacy. But his junior colleague has made it quite plain that he is gunning for Roe. Don’t believe the lip service Kavanaugh paid to precedent on Thursday. He is ready and willing to let states regulate abortion out of existence.