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Friday, October 04, 2019

Tea leaves on the abortion case

SCOTUS granted cert in two related cases challenging Louisiana's admitting-privilege law. The Fifth Circuit had declared the law valid despite Whole Woman's Health, in which the Court declared invalid a similar Texas law, drawing some arguably specious distinctions. The Court (with the Chief joining Ginsburg, Breyer, Sotomayor, and Kagan) stayed the Fifth Circuit order and reinstated the injunction in February.

I have to think this is a reversal, because there is no meaningful way to distinguish this law from the Texas law in Whole Woman's. If Roberts wanted to take the air out of WWH and let the law take effect, he would have denied the stay and voted to deny cert. Now perhaps he is setting the Court to overrule Whole Woman's and this is a power move--"only we can ignore or overrule our precedent." But I would expect that Roberts values "institutionalism" enough that he would not want to overrule a three-year-old decision.

The Court did grant a cross-petition in the case to consider whether medical providers can so easily assert third-party standing on behalf of all current and potential patients. This was a point in Thomas's WWH dissent.

Posted by Howard Wasserman on October 4, 2019 at 11:09 AM in Howard Wasserman, Law and Politics | Permalink

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