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Liberal Justices Mum on Kentucky Abortion Law as Next Case Looms

Dec. 10, 2019, 10:50 AM

Silence from the liberal majority on the U.S. Supreme Court’s decision to let stand a restrictive abortion law in Kentucky may have been strategic.

The justices are scheduled to hear arguments on another abortion case in the new year challenging a Louisiana law that requires doctors who perform abortions to have admitting privileges at a local hospital. The liberal members’ decision not to comment or publish a dissent Dec. 9 on the Kentucky case could signal the justices are working to gain a fifth vote for their position in that later dispute, court watchers say.

In refusing to review the Kentucky case, the justices left standing a law that requires doctors to display the ultrasound image, provide patients with a graphic description of the fetus, and make the fetal heartbeat audible before performing an abortion.

“None of the liberal justices were opposed to that, which makes me think that there’s a lot of jockeying for position and politicking going on with the court when it comes to the big Louisiana case that the justices are hearing in March,” said Mary Ziegler, a professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present.”

“It might mean the liberal justices still have a chance to get a fifth vote on the Louisiana case or it means they are going to make their more forceful arguments when the Louisiana case comes down,” she said.

Free Speech

Unlike the challenge over Louisiana’s law, the central question in the Kentucky case was whether requiring doctors to provide patients with information, even when the patient objects, violates their medical ethics and First Amendment freedom-of-speech rights.

Opponents say the Kentucky law is part of a continuing trend among conservative states to make abortions more difficult for women to obtain, but the “legal standard isn’t the same,” said Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union.

The question put before the court in the Kentucky case is very different than the question that will be put before the court in the Louisiana case, Gee v. June Medical Services LLC, she said.

“I don’t know that this gives us a lot of tea leaves to read to make anything out of what the court will do in June and in future abortion cases,” she said. “We’re obviously quite disappointed.”

ACLU Foundation and ACLU of Kentucky Foundation represented the abortion clinic.

In the Louisiana case, the state is also arguing that abortion providers shouldn’t be allowed to sue on behalf of their patients, a question the court has agreed to review. If the court says abortion doctors can’t sue on their patients’ behalf, that would mean individual pregnant women would have to find a way to bring their own lawsuits, Ziegler said. They would no longer be able to have organization like Planned Parenthood bring the cases.

“We know both liberals and conservatives and whoever the presumed swing vote is, which is presumably [Chief Justice] John Roberts, are all strategizing what’s going to happen in that case, and by extension what’s going to happen with abortion law more broadly,” she said.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Five Votes

Anti-abortion advocates, meanwhile, hope the court’s Dec. 9 decision means there are enough votes to preserve restrictions that have passed in other states.

“I hope it will mean that laws such as this will be actually be judged according to the text of the Constitution,” said David O’Steen, executive director of National Right to Life.

“Where can you find in the Constitution that Kentucky cannot require that a woman be given the information available through ultrasound before undergoing abortion?” he asked.

It’s “quite reasonable” to require that women receive “ultrasound information about the human being that would be destroyed in the abortion,” he said.

In a case from Indiana, the justices are being asked to uphold a law that requires patients to get an ultrasound at least 18 hours before an abortion. The court hasn’t decided if it will review that case.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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