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Excellent. But, the case is still not won yet. Rather, SCOTUS's decision to vacate the stay of the injunction (I'll explain in a second) shows that at least Justice Roberts isn't on board with screwing over abortion rights as quickly as possible without even a record. /1
In short, several states, including Louisiana, have started passing laws to make abortions way harder to get. One of these involves requiring a doctor have active admitting privileges at a hospital within 30 miles. This substantially narrows the places that abortion clinics /2
can operate, because they need both a hospital within 30 miles and the hospital has to give them privileges -- which isn't so easy given the many religious-affiliated hospitals and the many that just don't want to get near abortions. Other cases are ongoing at the moment /3
and SCOTUS is hearing one of them, Whole Women's Health, which involves the same Circuit Court (Fifth) analyzing a substantially similar law from another jurisdiction. There really wasn't anything crazy about the District Court enjoining this law, but then the Fifth Circuit /4
went overboard and stayed the injunction, which would permit the law to go into effect. This was wildly improper for a lot of reasons, one of them being the Fifth Circuit blithely ignoring the District Court's factual conclusion that the doctors couldn't get privileges. /5
To give an example, one clinic doctor got privileges at Tulane -- but, just like the anti-choice legislators intended, the privileges meant they could admit patients that would then be handled by Tulane. That, in turn, meant the doctor's privileges weren't good enough. /6
This is all by design, of course, the law isn't about the safety of abortion patients, it's about creating Catch-22s for abortion doctors. If the law goes into effect, Louisiana will have exactly one abortion doctor to handle 10,000 abortions a year at one clinic. /7
Justice Kavanaugh, in typical Federalist Society fashion, makes up a completely fake version of the facts in which the clinic doctors haven't tried to get privileges, and suggests letting the law begin and then re-starting all litigation if they can't get privileges. /8
This is insane and would never be demanded of a corporation trying to enjoin an agency regulation. It certainly wasn't demanded of Citizens United. Alito, Thomas, and Gorsuch all joined Kavanaugh's dishonest nonsense, but Chief Justice Roberts did not. /9
Whether Roberts's decision means anything going forward, I do not know, but it does show some sort of baseline respect for the rule of law and the processes of litigation, instead of making up new rules where abortion always instantly loses. /end
Perhaps so. I don't trust him, either. I suspect the key question on the merits here is a raw political calculus in his head as to whether it goes "too far" politically for SCOTUS to hold the effect of a law is irrelevant to the undue burden analysis.
Also, see this part of the clinics's SCOTUS brief. The Fifth Circuit, packed with Federalist Society members, now has absolutely bonkers precedent that the government always suffer irreparable harm when a law isn't enforced ASAP. That is outright disdain for the Constitution.
They have similar laws for ambulatory surgery centers. But 1st trimester abortions aren't major surgeries. They have a lower mortality rate than colonoscopies and liposuction, both of which can be done in doctors' offices with none of these requirements.
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