The Supreme Court’s decision to take up a Louisiana abortion case this term will pose a major test for President Trump‘s nominees on the politically divisive issue.
“For the first time in at least 25 years the court does not have a majority of justices who are committed to the legacy of a constitutional right to abortion on demand. That’s huge,” said Steven Aden, chief legal officer and general counsel for Americans United for Life, an anti-abortion legal group.
Their nominations were fiercely fought by abortion-rights activists, who saw them as a threat to Roe v. Wade and other decisions the Supreme Court has made over the years in favor of abortion access.
Anti-abortion groups, meanwhile, enthusiastically supported Gorsuch and Kavanaugh and now see their presence on the bench as the best opportunity in decades for scaling back abortion rights.
Trump’s two picks will be in the spotlight this term when the court decides whether to overturn or uphold a Louisiana law that would require abortion doctors to have admitting privileges at nearby hospitals — a requirement opponents view as an effort to force the closure of abortion clinics.
The Supreme Court in 2016 struck down a similar Texas law in Whole Women’s Health v. Hellerstedt. Justices said in the 5-3 ruling that admitting privilege requirements posed obstacles to abortion access and created an “undue burden” for women.
But that ruling came at a time when the court had only eight justices following the death of Justice Antonin Scalia. It was also before the retirement of Justice Anthony Kennedy, a swing vote who often sided with the court’s liberal wing on abortion.
It’s not clear where Kavanaugh and Gorsuch — both former circuit court judges — will land on the abortion issue; neither has ruled on such a case before.
Anti-abortion activists interpreted that ruling as a good sign the Supreme Court would take up the Louisiana case.
“I think the justices took the case because the majority or plurality of them want to again address abortion regulations and, in my estimation, pare back on the high-water mark for abortion rights that the Hellerstedt case from Texas represents,” Aden said.
The Supreme Court ruled 5-4 in February to temporarily block the Louisiana law from taking effect. Roberts sided with the liberal wing and Kavanaugh and Gorsuch joined Alito and Thomas in dissenting.
Kavanaugh wrote in his dissent that he would have denied the stay without prejudice because the law hadn’t taken effect yet.
But that’s not a reliable indicator for how the justices would vote after hearing oral arguments in the case.
Abortion-rights groups expect the court to strike down the Louisiana law, arguing that to do otherwise would mean the Supreme Court going against its own precedent.
“Certainly we’re concerned with the makeup of the court, but the law is unconstitutional. Under its own precedent, there should be no other possible outcome,” said Heather Schumaker, senior counsel for reproductive rights and health for the National Women’s Law Center.
The 5th Circuit Court of Appeals upheld the Louisiana law last year in a 2-1 vote, ruling it “does not impose a substantial burden on a large fraction of women.”
The plaintiffs — June Medical Services, represented by the Center for Reproductive Rights — appealed to the Supreme Court.
While abortion-rights advocates have been anxiously awaiting the court’s first abortion case after the addition of two conservative justices, they wanted the Supreme Court to take up the Louisiana challenge.
That’s because it would have otherwise gone into effect.
“We wouldn’t even be in this situation… if the 5th Circuit hadn’t completely disregarded the Supreme Court’s precedent,” Schumaker said.
Anti-abortion advocates also wanted the court to take the case, but because they think the 2016 decision was too broad.
The Supreme Court’s decision is likely to come in June or July, just months before the presidential election.
Planned Parenthood sent fundraising emails to supporters on Friday, writing: “This case could decide the future of abortion access in this country.”
Sen. Elizabeth Warren (D-Mass.), a front-runner for the Democratic presidential nomination, tweeted Friday: “Extremist Republican lawmakers are hoping the Supreme Court will back their radical play to cut off access to abortion.”