Yesterday the pro-life movement relearned the bitter lesson of 46 long years of judicial battles to roll back or limit the judicially concocted right to kill a child in the womb: Put not your faith in judges, for they shall disappoint you.
In a 5–4 decision, Justice John Roberts sided with the court’s progressive wing to grant an emergency stay blocking enforcement of Louisiana’s admitting-privileges law. As I explained earlier this week, the state requires that doctors performing abortions “have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.”
The Louisiana law appeared to violate a recent Supreme Court precedent called Whole Women’s Health v. Hellerstedt, which struck down a nearly identical Texas law. The Fifth Circuit Court of Appeals, however, surprisingly upheld the Louisiana law, holding that there were enough factual differences between Louisiana and Texas to render the Louisiana law less burdensome on abortion rights.
The appeals court’s ruling set up a showdown at a very different Supreme Court than the one that decided Whole Women’s Health in 2016. That case was decided 5–3. Justice Kennedy joined the progressive wing, Scalia had died, and Justices Roberts, Thomas, and Alito dissented. All other things being equal, since Kennedy retired, and Justices Gorsuch and Kavanaugh are both more originalist than Kennedy, one would think the 5–3 abortion-rights majority would transition to a narrow 5–4 edge for greater deference to state abortion regulation.
But no, not yesterday, and yesterday’s ruling was an ominous moment for those who’ve voted, worked, and fought for so very long to end the judicial philosophy that brought us one of the most monstrous court precedents in American history. When Justice Roberts joined the court’s progressives to grant the emergency stay and temporarily block Louisiana’s law while the case is pending before the Supreme Court, he did more than benignly push pause on the enforcement of the Louisiana law. Emergency stays are granted only when — among other factors — “there exists a significant possibility of reversal of the lower court’s decision.”