In Two Orders, SCOTUS Stays Louisiana Abortion Law, Permits Execution—Both Over Four Dissenters

In June Medical Services, LLC v. Gee, a five-Justice majority (the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan) granted a stay of the Fifth Circuit’s mandate upholding a Louisiana law that required abortion providers to have admitting privileges at a hospital. The law is therefore on hold until the Court resolves the petition for certiorari of that mandate. Opponents of the law view it as indistinguishable from the law the Court struck down as an undue burden in Whole Woman’s Health v. Hellerstedt in 2016. Justices Thomas, Alito, Gorsuch, and Kavanaugh would have denied the stay. Justice Kavanaugh separately wrote that since the law included a 45-day transitory period, no stay needed to be granted to preserve the status quo, and any abortion providers that did not obtain admitting privileges during the transitory period could still file an as-applied challenge and seek injunctive relief.

The Court also voted 5-4 to vacate a stay of execution, permitting Alabama death-row inmate Domineque Hakim Marcelle Ray to be executed on February 7. On November 6, 2018, the State scheduled his execution. Ray wanted to have an imam present at his execution, but the warden denied the request. Ray petitioned for relief under First Amendment grounds on January 28, 2019. The Eleventh Circuit stayed his execution, but the majority of the Supreme Court determined that Ray waited too long to make his last-minute plea. Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, dissented, arguing that Ray had a “powerful claim that his religious rights will be violated at the moment the State puts him to death,” and thus should have been heard on the merits. A link to the opinion in Dunn v. Ray is here.