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Justices stay out of Arkansas abortion case

The Supreme Court issued orders this morning from the justices’ private conference last week, and the big news out of today’s order list was what the justices did not do: They did not add any new cases to their merits docket for next term, and they did not ask the U.S. solicitor general to weigh in on any cases. They also did not act on several of the high-profile petitions that they have considered at several conferences in recent weeks. And perhaps most significantly, they did not intervene in a challenge to an Arkansas law regulating medication abortions – that is, abortions performed in early pregnancy by administering drugs, rather than surgically.

The Arkansas law at issue requires doctors who prescribe abortion-inducing drugs to have an agreement with another doctor who will agree to handle emergencies and has privileges to admit patients to a nearby hospital. The lawsuit was filed by Planned Parenthood, which runs reproductive-health clinics in Fayetteville and Little Rock that provide (among other things) medication abortions. Planned Parenthood says that it could not find a doctor willing to enter into the agreement required by the law; as a result, it contends, if the law goes into effect, it will not be able to provide medication abortions at its clinics and the state would have “only one remaining abortion provider.”

A federal district judge temporarily barred the state from implementing the law, but the U.S. Court of Appeals for the 8th Circuit reversed. It ruled that the law cannot be blocked without “concrete district court findings estimating the number of women” who would either postpone the procedure or pass it up altogether.

Planned Parenthood asked the Supreme Court to intervene, telling the justices that the Supreme Court’s abortion cases do not call for the kind of showing that the 8th Circuit required. Indeed, Planned Parenthood suggested, the 8th Circuit’s decision is so plainly wrong that the Supreme Court could reverse it without seeking additional briefing and oral argument on the merits.

But today the justices denied Planned Parenthood’s petition for review without comment, after considering it at only one conference. There is no way to know why the justices declined to step in, but the preliminary nature of the proceedings may have played a role.

The justices once again did not act on another case involving abortion: Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The justices have now considered the case at over a dozen conferences – and at nine conferences since receiving the lower-court records in late February.

The justices will meet for their next conference on Thursday, May 31; we expect orders from that conference on Monday, June 4, at 9:30 a.m.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices stay out of Arkansas abortion case, SCOTUSblog (May. 29, 2018, 12:22 PM),