//  2/11/19  //  Quick Reactions

Last Friday, I published a Washington Post op-ed about the Supreme Court’s decision to stay the U.S. Court of Appeals for the Fifth Circuit’s decision in June Medical Services v. Gee.  I’ve previously written about the Fifth Circuit’s decision here. In brief:  The U.S. Court of Appeals for the Fifth Circuit would have allowed Louisiana to enforce its admitting privileges requirement—a requirement that all abortion providers obtain admitting privileges at a hospital within 30 miles of where they perform abortions.  Just two terms ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court found that same exact requirement unconstitutional.

Louisiana’s efforts to enforce the law—and the Fifth Circuit’s decision upholding it—are part of a wave of efforts to artificially limit the force of Whole Woman’s Health and undermine access to abortion, all without overturning Roe v. Wade. (I’ve written about that topic at length on this blog here and here, among other places.)  

The gist of my Washington Post piece was that the Court’s 5-4 decision staying the Fifth Circuit’s decision—which temporarily blocked Louisiana from enforcing the admitting-privileges requirement—“underscores how much progressives stand to lose with the new court and how low our standards for victory have become.”  Indeed, there's a very real possibility that the Chief Justice will ultimately vote to uphold the Louisiana law if the Court hears the case next term (which it likely will, given the stay), in an opinion that overrules Whole Woman's Health or limits it to its facts.

The article also suggested that the 5-4 vote was, for reproductive justice supporters, “the bittersweet confirmation that they were right about Justices Neil M. Gorsuch and Brett M. Kavanaugh after all” because “[t]he two newest justices voted to allow the Louisiana law to go into effect, despite repeatedly pledging in their confirmation hearings to respect existing Supreme Court precedent even when they think it is wrong.”

I wanted to expand on how reproductive justice supporters were exactly right about Justice Kavanaugh in particular.  Only Justice Kavanaugh explained his vote on the stay, and he did so in an opinion that no other Justice joined.  (Perhaps because the opinion is so deeply and profoundly odd and unsupportable, as I’ll explain in a second. My guess is that the other Justices would, if they were forced to write an opinion, probably just come out and say they would overrule Whole Woman’s Health v. Hellerstedt or cabin the decision to its facts.)

When Justice Kavanaugh was nominated, every self-respecting supporter of reproductive rights expressed concern about his nomination.  Not just because the President had pledged to nominate Justices who would overturn Roe; not just because the President had outsourced the selection process to the Federalist Society; and not just because of Justice Kavanaugh’s general conservative bona fides.

Rather, the concern was because of then-Judge Kavanaugh’s judicial record on abortion.  On the D.C. Circuit, Justice Kavanaugh had authored one of the more absurd opinions upholding one of the more extreme limitations on abortion—the Office of Refugee Resettlement’s refusal to allow undocumented minor women in its custody to receive abortions.  I have written about that policy at length; so have Michael Dorf and Marty Lederman in a series of must-read posts.  In brief: ORR was refusing to release from its custody undocumented minor women who wanted to obtain abortions, and who were declared competent by state judges to decide for themselves to have abortions. The minors were also represented by court appointed guardians who would transport them to their doctor’s appointment and arrange payment for it.  All the government had to do was let them out the door.

In Garza v. Hargan, then-Judge Kavanaugh said the government didn’t have to do that, at least not yet.  And he did so in an opinion that was unpersuasive in light of current precedent, while purporting to offer a different procedural avenue for challenging the government restrictions that, in reality, probably would have prevented the women from having abortions at all. But the procedural route allowed him to avoid having to declare, explicitly, in an opinion that the young women couldn’t have abortions at all. The opinion stood out to people who were paying attention—it blithely ignored reality and how things work, it misconstrued Supreme Court precedent, and it enabled a truly cruel policy (some women were victims of sexual assault and expressed a desire to harm themselves if they could not obtain abortions).

This was all apparent at the time. That is, then-Judge Kavanaugh’s record on the court of appeals was exactly what reproductive advocates said it was.  (Read Melissa Murray's Senate testimony  if you don't believe me!) As I wrote in the Post, he made “flimsy distinctions with Supreme Court cases that favor access to abortion, and he “impose[d] ostensibly procedural obstacles that may have the practical effect of denying women access to abortion entirely by making it prohibitively difficult to challenge restrictions on abortion.”

And he did the same damn thing once he got to the Supreme Court, as all of his critics warned he would. There are some remarkable similarities between his opinion in Garza and his recent opinion in June Medical.

First, the flimsy distinctions with Supreme Court cases.  In Garza, then-Judge Kavanaugh allowed the Trump administration to continue to delay undocumented minor women from obtaining abortions. When the case reached the court of appeals, the government had delayed the women’s abortions for over a month by refusing to release them from government custody.

Then-Judge Kavanaugh would have allowed the government to delay the procedure further still, possibly beyond the point at which abortion was legal under state law, while the government ostensibly looked for a private sponsor to take custody of the women. His only legal justification for that conclusion (which he repeated at his confirmation hearings, which almost made me pull all the hair out of my head) was that the Court had upheld additional restrictions on minors’ access to abortion when it allowed states to impose a requirement that the minors obtain parental consent before having an abortion. He conveniently ignored that those same cases require states to offer minors a way to obtain abortions if a judge deems the minors competent to make their own decisions, and that, in Garza, state court judges had found the undocumented minor women in the government’s custody competent to decide to have abortions.

As I wrote during (the first round of) his confirmation hearings:

The minor in Garza, Jane Doe, obtained judicial bypass from the parental consent requirement.  That is, she availed herself of the judicial bypass procedure and convinced a state court judge that she should be able to have an abortion without parental consent.  Under Supreme Court cases, that is the end of the matter—she was entitled to have an abortion.  Yet Judge Kavanaugh would have allowed the government to subject her to some other requirement that would have delayed her abortion even further.  The parental consent cases do not suggest that states can do anything more to minors above and beyond a parental consent requirement with a judicial bypass procedure in order to better effectuate parental consent requirements.  They say the exact opposite.

In June Medical, Justice Kavanaugh followed the same playbook. He signaled his agreement with the court of appeals’ specious distinctions with Supreme Court precedent that favored to the clinics. (Again recall that Whole Woman’s Health v. Hellerstedt invalidated the same exact admitting privileges requirement when Texas enacted it.)

Also in Garza (and also in June Medical) then-Judge/Justice Kavanaugh would have indulged the government’s efforts to limit access to abortion by holding out a different, and more onerous way for the providers to challenge the restrictions at a later date. But that alternate procedural avenue would have seriously jeopardized women’s access to abortion, and likely eliminated it, all based on ridiculous factual obfuscations about which he just waved his hands. I

n Garza, then-Judge Kavanaugh would have allowed the government additional time to find the minor women sponsors, so that the government could release the women into the sponsors’ custody before the women had abortions.  There was … no basis to believe the government could find the women sponsors any time soon. The government had ostensibly been looking for sponsors for months but had not found them, and had already delayed the women’s abortions so much it had pushed them from the first to the second trimester.  And the women were already and approaching the period at which abortions were no longer legal under state law.  Time was of the essence. But Judge Kavanaugh would have forced them to wait some additional amount time, pushing them to the brink of when they could legally obtain abortions, before starting their legal challenges in the district court anew.

He did the same thing in June Medical. Justice Kavanaugh insisted that the Court did not have to block the Louisiana law because Louisiana was not going to actually enforce the law, and if it did, well then the providers could maybe challenge at that point. 

Huh? Imagine that tomorrow Alabama enacted a ban on same-sex marriage or adoption; or Mississippi enacted a criminal prohibition on abortion; or Kentucky announced that it would have segregated public education.  But the states said “oh don’t worry, we won’t enforce the law.”  That’s not a good enough reason to allow those laws, all of which have been declared unconstitutional, to go into effect.

Justice Kavanaugh also suggested that maybe, if the providers tried hard enough, they could obtain admitting privileges at local hospitals and comply with the law (just like if the women in Garza waited long enough the government would find them sponsors!).  That, too, is not a reason to allow a state to enforce an unconstitutional requirement—the doctors and providers shouldn’t be forced to live under an invalid law. 

And the consequences to women and to providers in the interim would be devastating. Once the law went into effect, doctors could not perform abortions until they obtained admitting privileges without risking criminal liability.  Ending abortions in Louisiana for some uncertain period of time comes at a considerable cost—there is no guarantee that providers that temporarily closed while they waited to see if doctors could obtain admitting privileges would reopen. And forcing them to rechallenge the law—and begin anew their legal proceedings—at that point would be too little, too late.

But Justice Kavanaugh’s explanation for his vote in June Medical is even more egregious than that. In his opinion, Justice Kavanaugh wrote:

[T]he State’s regulation provides that there will be a 45-day regulatory transition period before the new law is applied. The State represents, moreover, that Louisiana will not “move aggressively to enforce the challenged law” during the transition period, Objection to Emergency Application for Stay 2, and further represents that abortion providers will not “immediately be forced to cease operations,” id., at 25.

Let’s take a closer look at these representations.  First, there is no regulation that says the law will not be applied for the first 45 days in which it is effective.  Rather, there is a regulation from the Louisiana Department of Health (LDH) that gives clinics 45 days to document that its physicians have admitting privileges. That is the regulation Justice Kavanaugh is referencing, and also why the state says clinics won’t be forced to close.

But there’s an even bigger problem with this reasoning.  The Act also provides for criminal, civil, and professional liability for doctors and the LDH regulation deals only with the possible sanctions on clinics. There is no regulation, guidance, or official statement that doctors were not subject to penalties once the law went into effect.  So even if LDH did not shut down the clinics in the first 45 days, doctors would still be subject to and risking criminal penalties for performing abortions without admitting privileges (and the doctors didn’t have admitting privileges when the providers sought a stay). And a clinic without doctors is … not that much of a clinic at all!  LDH is not the entity that oversees or brings criminal prosecutions, so its regulation does nothing to address that possibility.  Nothing in the state’s brief promised not to enforce the law at all against doctors. It was just kind of a pinky swear about the clinics, and barely that—at most the state implied it wouldn’t aggressively enforce the law, not that it wouldn’t do so at all.

Asking clinics, patients, and providers to live under threat of possible criminal prosecution is not the orderly preservation of the status quo Justice Kavanaugh represented. It is a way of ending access to abortion for some uncertain period of time, with the very real possibility that that would turn into forever.

If Justice Kavanaugh wants to provide Susan Collins with cover for voting for him—so she can say “well, he didn’t overrule Roe, he just distinguished it into oblivion or found some procedural acrobatic maneuver to avoid ever ruling for an abortion provider” he can do so.  But we don’t have to pretend that his reasoning is even remotely persuasive. Or that we didn’t warn you.  I'm looking at you, Susan Collins.


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