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Court Issues Stay on Louisiana Abortion Law, Kavanaugh Dissents

By George Khoury, Esq. | Last updated on

In the closely watched abortion case out of Louisiana and the Fifth Circuit Court of Appeals, SCOTUS appears to have erred on the side of caution and issued the temporary stay pending their decision on whether to take that matter up on certiorari.

Notably, while the 5 to 4 decision extends the emergency stay of enforcement on Louisiana's law that would impose certain requirements on abortion providers in the state, if the Justices refuse to take the matter up, the stay automatically terminates and the law will then go into effect. Curiously, rookie Justice Kavanaugh issued a dissent, which the other no voting Justices did not sign on to.

Chief Justice Swing Vote

The Justices were divided along partisan lines, with Justice Thomas, Alito, Gorsuch, and Kavanaugh in the no camp. However, this case may be more about precedent that partisan lines.

The proponents of this appeal have framed the matter as one of that requires little more from the High Court but to agree with their prior decision in Whole Women's Health in 2016. That case dealt with a strikingly similar law out of Texas, which the High Court ruled would make obtaining an abortion significantly harder. In short, the law requires doctors providing abortions to have "admitting privileges" at a nearby hospital. The High Court previously ruled that this sort of policy doesn't actually improve anything for the women receiving abortions.

Kavanaugh Dissents Hard

Rookie Justice Kavanaugh goes into a brief explanation of the facts in his dissent. In short, he does not believe the Court should step into this dispute, seemingly because it is not ripe.

He asserts that there is not likely to be an injury as three of the four abortion doctors in the state haven't even tried to get admitting privileges, as the law would require, and as such, it is unknown whether or not the law would actually create any undue burden at all. Justice Kavanaugh suggests the proper course would be for the law to go into effect, then for the doctors to seek admitting privileges, and then file for an injunction if denied.

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