WASHINGTON — The Supreme Court agreed on Friday to take up an abortion case this term, adding an explosive issue to an already robust docket of controversial issues in the middle of the 2020 presidential election.
The justices will consider a Louisiana law that requires doctors to obtain admitting privileges from a nearby hospital.
This is the first abortion case that will be argued since Justice Brett Kavanaugh and Neil Gorsuch joined the bench, solidifying a conservative majority.
While the case does not directly challenge Roe v Wade, supporters of abortion rights are fearful that this is the first of what could be a growing number of opportunities for the new conservative majority to chip away at abortion rights.
A Supreme Court ruling on abortion could play a massive role in shaping the presidential race.
President Donald Trump and Republicans seeking to hold onto their Senate majority for years have rallied their evangelical base — including those who might find Trump’s personal behavior distasteful — around the promise of a right-leaning court that could lock in conservative victories for years to come. A court ruling that chips away at abortion rights, with more opportunities for the court to take up abortion in the near future, would galvanize that base.
The case is one of several cultural touchstones the Supreme Court will take up this year — including cases on employment discrimination against LGBT Americans, gun rights, and Trump’s elimination of protections undocumented immigrants brought into the United States as children. In recent years, polls have shown majorities of voters aligning with Democrats on those issues, particularly in the formerly Republican but rapidly shifting suburbs. If the court scales back on abortion rights and undercuts Obama-era steps on other key issues, those cultural issues could move to the forefront of the election.
The Louisiana law, which has been on hold pending appeal, says doctors must have admitting privileges at a hospital within 30 miles of the facility where the abortion is performed. It is nearly identical to a Texas law that the Supreme Court struck in 2016. Back then, Justice Anthony Kennedy joined with the liberal justices to rule against the law. Chief Justice John Roberts, Justices Clarence Thomas and Samuel Alito were in dissent.
Since that ruling, however, the composition of the Court has changed with the addition of Kavanaugh and Gorsuch.
Louisiana argues that the state law is necessary to provide a higher level of physician competence. The Center for Reproductive Rights, representing an abortion clinic and two Louisiana physicians, argues that if the law is allowed to go into effect is will leave “only one doctor to care for every woman seeking an abortion in the state.”
Earlier this year, the Supreme Court —with John Roberts joining with the liberals — put the law on hold in a 5-4 emergency order.
Notably, Kavanaugh dissented at the time, saying the move was premature. He noted that Louisiana had already stated that if the justices had allowed the law to go into effect, the state would have commenced a 45-day “transition” period to review how it would impact the clinics. No provider, the state promised, would be forced to immediately cease operations.
Kavanaugh said essentially that the 45-day period would allow parties to get a true sense of the impact of the law. If the challengers still thought the law imposed an undue burden they could bring their challenges at that time.
Louisiana currently has three clinics where four doctors perform abortions, and one doctor already has admitting privileges as required by the law; the question turns on whether the others would be able to obtain the privileges, he said.
“If they can, then the three clinics could continue providing abortions,” Kavanaugh wrote. “And if so, then the new law would not impose an undue burden for purposes of” Supreme Court precedent, he wrote.
The court will likely render a decision by June.