Where Kavanaugh Broke With Supreme Court Majority in Louisiana Abortion Law

Supreme Court Justice Brett Kavanaugh disagreed with the majority opinion that a Louisiana law was too restrictive on abortion access because the factual record failed to prove the law would cause three clinics to close.

On Monday, the Supreme Court struck down a Louisiana law that requires abortion-clinic doctors to have admitting privileges at a local hospital. Chief Justice John Roberts joined four liberal justices in voting to strike it down, and both of President Donald Trump's nominees—Kavanaugh and Justice Neil Gorsuch—voted that it should stand.

The five justices voting to strike down the Louisiana law concluded it was unconstitutional and Roberts cited the 2016 case Whole Woman's Health v. Hellerstedt. Although he dissented in the 2016 case, Roberts wrote that the Louisiana law imposes an abortion access burden "just as severe" as the precedent set forth in the Whole Woman's Health case and therefore "cannot stand."

Kavanaugh respectfully disagreed, writing in his dissent that he thought more fact-finding was necessary to "properly evaluate Louisiana's law." At this stage in the challenge, Kavanaugh said the factual record didn't adequately demonstrate that the three doctors—Does 2, 5 and 6—could not obtain admitting privileges as required by the law. If they could receive privileges, Kavanaugh wrote that it's not clear any of the three abortion clinics would close because of the law.

Newsweek reached out to Stephen Russo, executive counsel for the Louisiana Department of Health, for comment but did not receive a response in time for publication.

brett kavanaugh abortion louisiana
Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing in in the East Room of the White House October 8, 2018. On Monday, Kavanaugh Kavanaugh disagreed with the majority in a ruling about a Louisiana abortion law. Chip Somodevilla/Getty

Louisiana's law would require doctors performing abortions at a clinic to have admitting privileges at a hospital within 30 miles. It passed the state legislature in 2014, but it never went into effect because it's been tied up in legal proceedings. In 2016, a federal district court judge halted the enactment of the law and found only one clinic and one doctor in the state could perform abortions under the law. But, the 5th Circuit Court of Appeals reinstated the law in 2018, sending it to the Supreme Court.

The Supreme Court temporarily blocked the law so it could review the case in 2019. As was the case on Monday, Roberts was the tipping point in 2019, joining four liberal justices to form the 5–4 majority.

Since the law hasn't gone into effect, parties argue their cases based on predictions of whether the doctors in question could obtain admitting privileges. In 2019, Kavanaugh wrote in a dissenting opinion that a 45-day transition period could resolve the question before the new law was applied and the "factual uncertainties presented in the stay application."

If the doctors could obtain the necessary privileges, the three clinics could continue to provide operations and the law wouldn't impose an undue burden, Kavanaugh wrote. If the doctors couldn't obtain admitting privileges after the 45-day period, the justice said plaintiffs could file a motion for a preliminary injunction.

Kavanaugh noted his 2019 concerns about the "incomplete" factual record in his Monday dissent, noting that it hasn't changed since then, so his concerns still stand. He joined Justice Samuel Alito in calling for the court to remand the case for a new trial and additional fact-finding.