A pro-choice group, NARAL Pro-Choice America, said that "it only took Kavanaugh four months into his lifetime appointment on the bench to prove that Susan Collins' insistence that he would respect precedent was a complete lie".
Ed Whelan, president of the Ethics and Public Policy Center and a contributor to National Review, said in a February 8 post he does not think Roberts' vote for the stay "signals anything about how he will rule on the merits of the case". "These doctors have been trying to get admitting privileges for four and a half years, but hospitals have no incentive to give those privileges to doctors who provide abortion care".
The new justice didn't join three colleagues who are clearly opposed to abortion. The petitioners argue that nearly all abortion clinics in the state would close while the matter is pending in the Supreme Court and that the justices should keep the law from going into effect during that time.
The majority of five justices included Chief Justice John Roberts, who leans conservative but has become the closest thing to a swing vote in controversial cases since the retirement of Justice Anthony Kennedy, who frequently broke ties on the divided court.
Democrats and liberal groups Friday pointed to a Supreme Court ruling in an abortion case to argue that Justice Brett Kavanaugh would vote to overturn Roe v. Wade, focusing their ire on Maine Sen. That was in 2016, before the confirmations of Neil Gorsuch and Brett Kavanaugh to the Court.
Although Kavanaugh does not have an extensive record ruling on reproductive rights cases, Trump promised to appoint only "pro-life" justices.
Kavanaugh wrote his own opinion, explaining it was unclear whether doctors would be unable to obtain the admitting privileges were the law to go into effect. The fifth circuit also upheld the Texas law, which led to the 2016 precedent.
Finally, Smith rejected the district court's factual finding that the law would make access to abortion more hard for 70 percent of women seeking abortions in the state.
The court, of course, could accept the Louisiana case for review next term, reopening the abortion debate, and perhaps even entertaining the possibility of reversing Roe. Similar measures are being pushed in MA and Rhode Island. But with his vote on Thursday, he brought new balance to the court. A bill in Hawaii would expand the pool of health workers who can provide surgical abortion to include some nurses.
The question, Kavanaugh wrote, is whether three clinic doctors without hospital admitting privileges can obtain them. The state already requires a medically unnecessary ultrasound and a medically unnecessary 24-hour waiting period.
One reason to grant a stay is because there is a substantial likelihood that the Court will ultimately take the case and then reverse the lower court. Of the 11 active Republican appointees, only one, a George W. Bush appointee, voted to rehear the case.
"We are disappointed this law has been enjoined, but we are hopeful that the state of Louisiana will prevail in the end", Travis Wussow, general counsel and vice president for public policy of the Southern Baptist Ethics & Religious Liberty Commission, said in written comments for Baptist Press.
Louisiana's abortion providers filed an emergency application at the high court asking the justices to temporarily lift the 5th Circuit's decision in January.