Justice Neil M. Gorsuch wasn’t on the U.S. Supreme Court in June 2016 when it handed down its decision in Whole Woman’s Health v. Hellerstedt, and that might make all the difference when it is called on to review the most recent decision upholding a state abortion law.
Justice Antonin G. Scalia had passed away four months earlier and Judge Merrick B. Garland, President Barack Obama’s nominee for the seat, was awaiting a Senate confirmation hearing that would never come. Gorsuch was a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver and wasn’t even considered as a replacement for Scalia at the time.
In Whole Woman’s Health, the court’s four liberal justices, joined by Justice Anthony M. Kennedy, reversed a decision by the U.S. Court of Appeals for the Fifth Circuit and invalidated a Texas law that required health-care providers who offered abortion services to also have admitting privileges at a local hospital. The three conservative justices on the court all dissented.
The 5-3 decision surprised some court watchers at the time, who were unsure which way Kennedy would vote. Had he sided with the conservative justices, the Texas law would have survived because an evenly divided court would have allowed the Fifth Circuit’s decision to stand.
In the months since that decision was released, President Trump was elected and Gorsuch, who is considered one of the more conservative judges on the court, has been confirmed to fill Scalia’s seat.
Throughout 2016 and 2017 a challenge to a similar law in Arkansas was bubbling up through the federal courts. That law, the Abortion-Inducing Drugs Safety Act, required any health-care providers in the state who prescribed abortion-inducing medications to also have a contract with a physician with admitting privileges at a local hospital.
In March 2016, before the Whole Woman’s Health decision was announced, a federal judge blocked the Arkansas law, issuing a 70-page preliminary injunction order saying the law placed a substantial obstacle in the way of women seeking a medication-induced abortion without producing any added benefit to the women.
The U.S. Court of Appeals for the Eighth Circuit reversed that injunction in July 2017. The appeals court decision, written by Judge Raymond W. Gruender, said the trial court hadn’t provided the necessary factual findings on the percentage of women who would be affected by the law required by Whole Woman’s Health.
On Oct. 13, two of the three judges on that appeals panel agreed to stay that decision and allow the trial court’s injunction to stay in place while the challengers appealed to the Supreme Court. Judge Gruender voted against the stay.
When the case reaches the Supreme Court, Kennedy will still probably be the deciding vote in determining whether the Arkansas abortion law will stand, but with Gorsuch filling out the court’s conservative wing, it’s possible that we could see a very different result this time.
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