WASHINGTON (CN) – In a 5-4 order, the U.S. Supreme Court issued an emergency stay Thursday night that blocks efforts by Louisiana to significantly limit women’s access to abortion providers in the state.
Largely considered to be the court’s first major test of its newly formed conservative majority, the stay is the Supreme Court’s first brush with abortion since the confirmation of Justice Brett Kavanaugh.
Chief Justice John Roberts joined liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer in the decision to grant the emergency stay while the case is challenged on appeal in the U.S. Court of Appeals for the Fifth Circuit.
Though the order does not delve into the merits, the 5-4 vote indicates the high court may have doubt over the law’s legitimacy or constitutionality.
Louisiana passed the law, known as the Louisiana Unsafe Abortion Protection Act, in 2014. Among other requirements, the law mandates that doctors who perform abortions must have admitting privileges at a hospital within 30 miles of the clinic.
The law mirrors one in Texas that the Supreme Court struck down in the 2016 ruling Whole Woman’s Health v. Hellerstedt, finding that the restrictions posed an unconstitutional burden on women seeking abortions.
In the Louisiana case, the challengers are led by Hope Medical Group for Women, a women’s health clinic that provides abortions in Shreveport.
Justices Brett Kavanaugh, Clarence Thomas, Samuel Alito and Neil Gorsuch voted against the stay Thursday, but Justice Kavanaugh dissented alone.
“Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law,” Kavanaugh wrote.
The question, he continued, is whether the other three doctors can actually obtain the necessary admitting privileges.
If they can, the justice wrote, then the three clinics could continue providing abortions, and the new law “would not impose undue burden.”
“By contrast, if the three doctors cannot obtain admitting privileges, then one or two of the three clinics would not be able to continue providing abortions. If so, then even the state acknowledges the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health,” Kavanaugh wrote.
The Guttmacher Institute, a research and policy organization that supports a woman’s right to abortion, reported that the procedure was on the decline in Louisiana in 2017.
The institute collects its state-by-state data every three years. Though its most recent study found that greater access to more effective and affordable contraception contributed to the decline in abortions in Louisiana, that wasn’t the only reason.
Tougher state restrictions on abortion have shuttered more clinics across Louisiana and other states. Between 2011 and 2014, the number of abortion clinics in Louisiana specifically, dropped from seven to five, and all came at a time when abortion restrictions were more actively enforced by the state.
The Louisiana Legislature banned abortions at 20 weeks in 2012, only to pass a rule the following year that prohibited access to Plan B, or the morning-after pill.
Anti abortion groups have historically argued that the drop in abortion clinics and the decline in actual procedures is an indicator that more people oppose abortion.
But Gallup polls have told a different story. Nearly 47 percent of Americans surveyed in 2016 supported abortion rights while 46 percent oppose them.
On Thursday night, Ilyse Hogue, president of NARAL Pro-Choice America, an abortion rights group, said in a statement that the high court’s emergency stay maintained a “critical lifeline for women in Louisiana who already face some of the bleakest outlooks for reproductive freedom.”
“The Supreme Court rightfully refused to uphold a brazen and unconstitutional attempt to ignore identical cases that are intended to shutter abortion clinics in the state, making Roe v. Wade obsolete,” Hogue said.
In a statement late Thursday night, Carol Tobias, president of National Right to Life Committee in Washington, D.C., had a different outlook on the Louisiana law.
“There are numerous documented cases of physical complications following an abortion that require women to seek emergency medical treatment,” she said. “Ensuring that abortionists have admitting privileges is the very least the abortion industry can do to protect women.”