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Kavanaugh's abortion dissent doesn't mean what you think



In a 5-4 decision, the Supreme Court ruled Thursday that it will not allow Louisiana to enforce its law requiring abortion for admission to nearby hospitals, while the case against it continues.

Supreme Court Justice Brett Kavanaugh is asking a good question: Why should Louisiana refrain from enforcing an abortion law, which is said to be impossible, when the three doctors at issue have tried to obey it?

In Kavanaugh's dissent, he said the case "largely turns" on whether Louisiana's three doctors who provide abortions get the admission privileges of the law in the next 45 days. He argues that it makes logical sense that they should be allowed to do so, while the law is in effect, and if they can, then the plaintiffs could challenge the law based on that failure. (To its credit, Louisiana even said it would not try to "aggressively enforce the law.") If the doctors get admitting privileges, all of the clinics can keep doing abortions, and Louisiana gets to keep its law protecting women. Everyone wins.

Some avid pro-lifts might want to interpret Kavanaugh's dissent as a method of tapping into the waters of abortion without causing too many waves. It's not. Kavanaugh was not in his dissent about the merits of Roe v. Wade or abortion. But this should not disappoint pro-life advocates. Kavanaugh stuck to dissenting about the procedural issue at stake, which is whether or not it is already in place should go forward, while the people most affected by the law, abortion doctors who need to get admitting privileges, figure out if they can or should abide at it. It makes sense logically, practically, and procedurally.

If the court had ruled the way Kavanaugh described in his dissent, it would actually have allowed more of a litmus test for abortion advocates. If the law had been allowed to go into effect, it would have been necessary to face the issue at hand: Are three doctors really unable to get admissions to hospitals in 45 days?

The majority decision, on the other hand, came as a surprise to conservatives: Chief Justice John Roberts joined the more liberal justices in granting the stay. While some liberals are saying that Roberts "just placed Roe v. Wade on life support," this does not appear to be a landmark decision for or against abortion. This decision demonstrates that judges are looking at the facts of each case and making decisions based on them. If Roe is to be overturned, it must be done on the merits of the right child or case that challenges it ̵

1; so that legally the Supreme Court retains its judicial authority.


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