Abortion appeals waiting as Supreme Court returns for new term

Greg Stohr
Bloomberg News
Abortion opponents are likely to get a more receptive audience now that Justice Brett Kavanaugh has replaced the retired Justice Anthony Kennedy.

Washington – Abortion cases are coming to the U.S. Supreme Court, and they’re only getting harder for the justices to avoid.

The court next week starts a new term that will give the clearest indication yet of how eager the justices are to roll back the right to end a pregnancy. Rulings on major cases could come next June in the heat of the presidential campaign.

Abortion opponents are likely to get a more receptive audience now that Justice Brett Kavanaugh has replaced the retired Justice Anthony Kennedy. The eventual goal is to overturn the 1973 Roe v. Wade ruling, which legalized the procedure nationwide.

It will be a test for Chief Justice John Roberts, who probably holds the pivotal vote. Roberts often tries to steer the court away from divisive issues, an approach that may explain why the court largely ducked the abortion issue last term.

“After this term, I think we’ll have a lot more clarity about the court moving forward on the abortion issue,” said Rachel Morrison, a lawyer with Americans United for Life, an anti-abortion group.

The first clue could come as early as this week, when the justices are scheduled to issue a list of new cases they will hear. The candidates include a challenge to a Louisiana law that would require doctors who perform abortions to have admitting privileges at a local hospital.

A federal appeals court upheld the law, even though the Supreme Court struck down similar Texas restrictions in 2016, before Kennedy retired. The court said the Texas measure provided negligible health benefits for women while forcing clinics across the state to close.

In a 2-1 opinion, the 5th U.S. Circuit Court of Appeals said the Louisiana law’s impact wasn’t nearly as great as in Texas. The majority said the law wasn’t forcing any clinics to close, blaming doctors for not making good-faith efforts to get the required privileges.

“The vast majority largely sat on their hands, assuming that they would not qualify,” Judge Jerry Smith wrote for the majority. Opponents say the law is indistinguishable from the rules struck down in the Texas case.

The Louisiana case’s history gives it a better-than-usual chance for review. In February, Roberts joined the four Democratic-appointed justices to temporarily keep the law from taking effect. Justices who vote for that type of stay order typically do so only when they are prepared to take up the underlying appeal.

But the case also presents a risk for the court’s liberal wing. Roberts dissented from the Texas ruling, and high court review of the Louisiana case would put him in position to overturn the earlier decision if he chooses.

“The 5th Circuit has put the court in an impossible situation,” said Travis J. Tu, the lead lawyer challenging the law for the Center for Reproductive Rights. “They could choose not to take the case, but of course that sends a message about the court’s commitment to its own precedent. Or they could take it, which would mean that the Supreme Court has a major abortion case on its docket in an election year.”

One possibility – though perhaps not the most likely one – is that the justices could reverse the appeals court ruling without even hearing arguments. That would spare Roberts and the court from a high-profile argument and months of attention on the issue.

Complicating matters is a separate case that raises overlapping issues. Indiana is asking the court to reinstate a requirement that women undergo an ultrasound at least 18 hours before an abortion.