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April 21st, 2019

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Abortion case reveals a lot about Roberts, Kavanaugh. Those revealations should prove fascinating

Noah Feldman

By Noah Feldman Bloomberg View

Published Feb. 11, 2019

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By a 5-4 vote Thursday night, the U.S. Supreme Court blocked a Louisiana law that would have made abortion all but impossible in the state - at least until the court can hear the merits of the case.

The most important fact about this result is that Chief Justice John Roberts cast the deciding vote to stop the law from taking effect. That doesn't tell you how he'll ultimately vote on whether the law is constitutional. But it does tell you that Roberts cares about a fair process.

Under recent Supreme Court precedent, the law is pretty clearly unconstitutional, and Roberts doesn't want to overturn that precedent until the court has considered the case, June Medical Services LLC v. Gee, in detail.

Yet the decision contains another extremely important piece of evidence. Justice Brett Kavanaugh, the newest addition to the court, wrote a four-page explanation of why he thought the law should go into effect.

Kavanaugh is the only justice to write anything in the case thus far. His explanation tells us a great deal about how Kavanaugh is going to approach abortion cases - much more than we could have known previously.

To begin with the conclusion, Kavanaugh's opinion demonstrates that he is open to the strategy of subjecting abortion rights to death by a thousand cuts. At the same time, it hints that he may not want to overturn the Supreme Court's abortion precedent wholesale.

The opinion shows that Kavanaugh wants to be seen as a serious conservative but not as a radical.

The most relevant precedent for us to consider in the Louisiana case is the Supreme Court's 2016 decision in Whole Woman's Health v. Hellerstedt.

The Whole Women's Health case was Justice Anthony Kennedy's last liberal vote on abortion rights. It was a 5-3 decision, issued after Justice Antonin Scalia had died and before Donald Trump had been elected and nominated Justice Neil Gorsuch to the bench. The opinion was written by Justice Stephen Breyer.

The Whole Woman's Health case involved a Texas law that imposed a range of restrictions on doctors and clinics who performed abortions. For our purposes, the most important was a restriction that said doctors who performed abortions had to have admitting privileges at hospitals no more than 30 miles from the clinic where they performed abortions.

The court held that this regulation was an "undue burden" on the right to abortion - the standard that the court had first articulated in the landmark 1992 case of Planned Parenthood v. Casey. Kennedy was a co-author of that opinion.

Breyer, who was an expert on federal regulation before he became a justice, used cost-benefit analysis as the rubric for the Whole Women's Health decision, explaining that if a law restricting abortion failed to confer benefits, it violated the Casey "undue burden" test. Kennedy joined the opinion.

The Louisiana law before the court now mimics the Texas law that the court struck down: It requires doctors who perform abortions to have admitting privileges at nearby hospitals.

A federal district court struck down the law as indistinguishable from the Texas law that the Supreme Court had ruled unconstitutional. The U.S. Court of Appeals for the 5th Circuit nevertheless reversed and upheld the law.

In his opinion explaining why he would have left the law in place pending the Supreme Court case, Kavanaugh noted that only three clinics in Louisiana perform abortions, relying on a total of four doctors. Only one of those doctors has admitting privileges at a nearby hospital; the other three don't.

Kavanaugh also noted that the Louisiana law provides for a 45 day transition period. He reasoned that, in those 45 days, the three doctors who lack admitting privileges could try to get them. As Kavanaugh observed, the district court thought this wasn't realistic; the appellate court said it thought the doctors could get those admitting privileges and keep on performing abortions.

Kavanaugh's opinion said that the doctors should try to get admitting privileges. If they can't, he said, the plaintiffs in the case could go back to court and say that abortion rights were being curtailed by the law - an "undue burden" under the Whole Woman's Health precedent.

But, Kavanaugh said, if the remaining three doctors get admitting privileges and go on performing abortions, then "in that circumstance, the Louisiana law as applied would not impose an undue burden under Whole Woman's Health."

On the one hand, this judgment shows that Kavanaugh is prepared to uphold the Louisiana law if the doctors managed to get admitting privileges and continue to perform abortions. That's not necessarily the correct interpretation of the Supreme Court precedent.

The true issue in determining undue burden shouldn't be whether the four doctors who currently perform abortions can keep on doing so. Rather, the question should be whether the Louisiana law confers any benefits relative to the cost imposed on abortion.

And the reality is that requiring the doctors to have admitting privileges doesn't confer any real health benefits. It should fail the Whole Woman's Health test on its own. Kavanaugh's apparent willingness to hold otherwise suggests he's willing to chip away at the abortion right.

On the other hand, Kavanaugh could have joined the three other hard-line conservatives without explanation. That would have signaled he was prepared to overrule the 2016 precedent. By writing, he hasn't ruled that out, but he has at least said that he takes the precedent seriously as currently binding law. The other three didn't join his opinion, suggesting that they aren't prepared to treat Whole Woman's Health as binding precedent.

The case deserves to be very closely watched. Roberts's vote suggests that all is not yet lost for supporters of abortion rights. And Kavanaugh's vote hints that he is looking for some sort of conservative position that will avoid the embarrassment of overturning the 2016 decision just because he has replaced his old boss Kennedy.

No matter what, the case is going to continue to be fascinating.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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