By a vote of 5-to-4, the Supreme Court on Thursday blocked a law that would have shut down two of the three abortion-providing clinics left in the state of Louisiana. The law, which was set to take effect Friday, would have required abortion providers acquire admitting privileges at local hospitals. The majority did not offer an opinion explaining its decision, which will allow the clinics to remain open while the petitioners wait to learn if the Supreme Court will hear the case next session.
But the decision is not, in itself, surprising. The Louisiana law was almost indistinguishable from a Texas statute the court struck down, also 5-to-4, in the 2016 case, Whole Woman’s Health v. Hellerstedt. The difference, of course, is that two conservative justices — Neil Gorsuch and Brett Kavanaugh — have joined the court since that ruling. Justice Brett Kavanaugh issued a dissent on Thursday arguing that the precedent created by Whole Women’s Health did not apply in this case; no conservative members of the court joined his decision.
Instead of Anthony Kennedy, this time it was Chief Justice John Roberts who joined the liberal wing of the court in temporarily blocking the law. Two years ago Roberts voted to uphold the law at issue in Whole Woman’s Health. So, what changed? Longtime court-watcher David A. Kaplan, author of The Most Dangerous Branch, believes that Roberts’ record shows he is hesitant to plunge the court into the white-hot center of any political controversy — whether it’s the Affordable Care Act, a Trump administration policy for immigrants seeking asylum, or abortion.
When Rolling Stone interviewed Kaplan ahead of Kavanaugh’s confirmation hearings last year, he predicted that Roberts might be inclined to side with the court’s liberals on abortion cases. “I think Roberts is troubled by seeing the court get put in the maelstrom,” Kaplan said. “And I think he recognizes that Roe v. Wade would put the court in the maelstrom like no other ruling in modern times, even more so than Obamacare being decided in a presidential election year.”
Kaplan continued: “My guess would be that Roberts would not vote to explicitly overturn Roe, and my guess would be that Kavanaugh would not do so either. If Roe v. Wade squarely came before the court in six months or a year, my guess would be a 6-3 not to overturn it. But — and it’s a significant ‘but’ — you can chip away at Roe without overturning it. The Supreme Court has already upheld 24-hour waiting provisions. And you could easily imagine Kavanaugh and Roberts upholding virtually any regulation, any restriction on abortion, short of an outright ban on abortion.”
Reached on Friday morning, Kaplan said he stood by his view expressed last year. “I think yesterday’s Supreme Court ruling on the Louisiana abortion statute shows I was right! (At least for now.) This is Roberts trying to keep the Court out of the storm, which he has tried to do a few times this year,” he wrote in an email.
“As for Kavanaugh,” he added, “His opinion is narrow and only about the details about the statute. He says nothing about the larger constitutional question on abortion. His opinion suggests nothing of a larger view on Roe v. Wade — and is more significant because none of the three arch conservative justices joined it. Yesterday’s decision of the Court is but a brief way station in the Court’s journey on abortion. But even with that qualification, I would say Kavanaugh’s opinion, as well as Roberts’s vote, make it less likely that the Court anytime soon will explicitly overturn Roe v Wade.”