A Late-Night Supreme Court Ruling Has Saved Louisiana's Abortion Clinics—for Now

With just hours to spare, the Supreme Court stepped in Thursday to keep abortion clinics open in the state. But how long will the reprieve last?
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The Supreme Court of the United States in Washington, D.C.

The Supreme Court's last-minute order has temporarily saved Louisiana's abortion clinics.

"Oh my God."

Katie Caldwell got the news at 8:30 p.m. Thursday night, hours after she'd closed the New Orleans abortion clinic where she's administrator, wondering if the clinic would ever provide abortions again. In a brief order that she hardly hoped would come, with hours to spare before a midnight deadline, the Supreme Court voted 5–4 to stop a Louisiana law that would have left a single practicing abortion doctor in the state. The court's liberal justices and conservative Chief Justice John Roberts had, for now, saved her clinic.

"I just called my doctors, I just called my owners," she said. "It was a Hail Mary and it happened." She paused, as if to wrap her mind around her dramatic shift in fortune. "This is better than we could have ever anticipated."

Caldwell hadn't anticipated much. She'd done her job that day—overseeing staff and patients, aiding with various tasks, to the staccato sound of ringing phones—with her typical zeal and an air of resignation. Every seat was filled in the clinic waiting room as staff worked to see every woman they could. Outside, two lone middle-aged women with short dark hair were the only protesters, talking at women walking in and out ("God loves us all, God loves babies, he doesn't want us to kill babies"), who ignored them. No media, no crowds. It appeared as if, after decades of hostility toward places like this in states like this one, the end would begin in relative obscurity.

In September, the Fifth Circuit Court of Appeals had ruled 2–1 to uphold a 2014 Louisiana law requiring abortion doctors to have admitting privileges within 30 miles of the clinic where they work—a law nearly identical to one in Texas struck down as an "undue burden" on women seeking abortions with little medical benefit by the 2016 Supreme Court decision Whole Woman's Health v. Hellerstedt. In late January, the Fifth Circuit then denied a petition for the case to be re-heard by the entire bench. ("The Fifth Circuit has brazenly ignored recent U.S. Supreme Court precedent," charged Nancy Northup, the president of the Center for Reproductive Rights, the legal group fighting the case on behalf of one of the clinics.) The law would have taken effect February 4th, but the Supreme Court issued a temporary stay until midnight on February 7th—leaving the state's three clinics on tenterhooks. The staff, like Caldwell, had steeled themselves for bad news. They joked darkly of the impending abortion apocalypse.

The New Orleans abortion clinic, pictured here in October of 2018, can still provide abortions, thanks to an emergency order from the Supreme Court of the United States issued on February 7th, 2019.

The New Orleans abortion clinic, pictured here in October of 2018, can still provide abortions, thanks to an emergency order from the Supreme Court of the United States issued on February 7th, 2019.

Caldwell has spent years watching the state work to end abortion, and the situation she found herself in, a kind of devastating limbo, had been a long time coming. She'd already strategized with other abortion providers in the state over how to respond to the law, assuming the Supreme Court wouldn't step in. In that event, the clinic was expecting to stay open, providing state-mandated counseling visits and follow-up appointments while sending women five hours away to Shreveport, to the state's single working doctor permitted to perform abortions, for the actual procedure. Caldwell had already sent out hundreds of letters over the last year asking OBGYNs with admitting privileges to help them (none did). She wondered if, faced with the actual implementation of the law, some might be pressed to change their minds.

As Mary Lingwall answered the phones at the reception desk, she explained the uncertainty of abortion care in the state, entreating women on the other end not to hang up after telling them they might not be able to get an abortion at the New Orleans clinic. She directed them to a new website launched by a reproductive rights activist network in New Orleans, intended to clear up confusion: www.canigetanabortioninlouisiana.com.

"Are you ready for the new beginning?" asked the doctor on staff that day.

I asked what that meant.

"This is what we needed to happen. You lose the battles to win the war. I can sacrifice the battles to win the war. And right now, we're going after the Supreme Court."

The strategy is not without its risks. To begin with, the court only ruled to stay the Louisiana law—it hasn't yet confirmed it will hear the case, though most expect it will. If it decides not to, the law will take effect. If the court does grant certiorari, a new threat arises.

"A stay doesn't dictate what [the court] ultimately decides to do on the merits" of the case, Faren Tang, reproductive justice fellow at the Program for the Study of Reproductive Justice at Yale Law School told me earlier in the week. "You could see conservative justices on the Supreme Court choosing to stay the Fifth Circuit decision perhaps out of a sense the Fifth Circuit has so grossly overstepped its role here, but nevertheless on the merits ultimately decide to uphold the law."

"This should be an easy case—all that's needed is a straightforward application of the court's own precedent," said Northup in a statement.

Chief Justice John Roberts has positioned himself as a new possible swing vote—the other conservatives would have let the law take effect, and Justice Brett Kavanaugh wrote a dissent arguing the law should have been implemented in order to see, as a kind of experiment, whether it really was nearly impossible for abortion doctors to get admitting privileges in nearby hospitals (a task that is both convoluted and steeped with barriers in this majority pro-life state). If Roberts were to vote in line with his conservative colleagues, the eventual decision could set a precedent that precipitates a dozen or more similar laws in other states, wiping out access across a broad swath of the country with relative speed. The stay "sets the stage for a review of our law in the Supreme Court. Not done yet!" tweeted Louisiana Right to Life.

It was nearly 6 p.m. when the clinic finished seeing its last patient, and Caldwell was worn down by the anticipation. "I'm just sick of living in a world that's so cruel to women," she said. A nurse finished up patient charts. The security guard took out the trash. They turned off lights; collected the fleece blankets, lent to patients feeling cold or sleepy from the drugs, for daily laundering; locked filing cabinets; and gathered their bags. Caldwell knew if and when the court released its order, her phone would ring. Pinned to the collar of her striped shirt was one single indication of hope: Justice Ruth Bader Ginsburg's likeness and what's become a slogan on the left: "I dissent."

When the 11th-hour news came, it shocked her. "I just breathed for the first time in six months," she said. Looming over this reprieve, though, is the unease of what comes next.

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