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` Cite as: 586 U. S. ____ (2019)
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`KAVANAUGH, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
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` JUNE MEDICAL SERVICES, L.L.C., ET AL.
`v. REBEKAH GEE, SECRETARY, LOUISIANA
`DEPARTMENT OF HEALTH AND HOSPITALS
`
`
`ON APPLICATION FOR STAY
`No. 18A774 Decided February 7, 2019
`The application for a stay presented to JUSTICE ALITO
`
`
`and by him referred to the Court is granted, and the man-
`date of the United States Court of Appeals for the Fifth
`Circuit in case No. 17-30397 is stayed pending the timely
`filing and disposition of a petition for a writ of certiorari.
`
`Should the petition for a writ of certiorari be denied, this
`stay shall terminate automatically.
`In the event the
`petition for a writ of certiorari is granted, the stay shall
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`terminate upon the sending down of the judgment of this
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`Court.
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` JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH,
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`
`
` and JUSTICE KAVANAUGH would deny the application.
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`
` JUSTICE KAVANAUGH, dissenting from grant of applica-
`tion for stay.
`I respectfully dissent from the Court’s stay order. In
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`this case, the plaintiffs raised a pre-enforcement facial
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`challenge to Louisiana’s new admitting-privileges re-
`quirement for doctors who perform abortions. The Fifth
`Circuit rejected the plaintiffs’ facial challenge based on
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`that court’s factual prediction that the new law would not
`affect the availability of abortions from, as relevant here,
`the four doctors who currently perform abortions at Loui-
`siana’s three abortion clinics.
`In particular, the Fifth
`Circuit determined that the four doctors likely could ob-
`tain admitting privileges. The plaintiffs seek a stay of the
`Fifth Circuit’s mandate. They argue that the Fifth Cir-
`cuit’s factual prediction is inaccurate because, according to
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`1
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`2
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` JUNE MEDICAL SERVICES, L.L.C. v. GEE
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`KAVANAUGH, J., dissenting
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`the plaintiffs, three of those four doctors will not be able to
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` obtain admitting privileges. As I explain below, even
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` without a stay, the status quo will be effectively preserved
`for all parties during the State’s 45-day regulatory transi-
`tion period. I would deny the stay without prejudice to the
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`plaintiffs’ ability to bring a later as-applied complaint and
`motion for preliminary injunction at the conclusion of the
`45-day regulatory transition period if the Fifth Circuit’s
`factual prediction about the doctors’ ability to obtain
`admitting privileges proves to be inaccurate.
`
`Louisiana’s new law requires doctors who perform abor-
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`tions to have admitting privileges at a nearby hospital.
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`The question presented to us at this time is whether the
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`law imposes an undue burden under our decision in Whole
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`Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016). All
`parties, including the State of Louisiana, agree that Whole
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`Woman’s Health is the governing precedent for purposes of
`this stay application. I therefore will analyze the stay
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`application under that precedent.
`
`Louisiana has three clinics that currently provide abor-
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`tions. As relevant here, four doctors perform abortions at
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`those three clinics. One of those four doctors has admit-
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`ting privileges at a nearby hospital, as required by
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`the new law. The question is whether the other three
`doctors—Doe 2, Doe 5, and Doe 6—can obtain the neces-
`sary admitting privileges. If they can, then the three
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`clinics could continue providing abortions. And if so, then
`the new law would not impose an undue burden for pur-
`poses of Whole Woman’s Health. By contrast, if the three
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`doctors cannot obtain admitting privileges, then one or
`two of the three clinics would not be able to continue
`providing abortions. If so, then even the State acknowl-
`edges that the new law might be deemed to impose an
`undue burden for purposes of Whole Woman’s Health.
`The law has not yet taken effect, so the case comes to us
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`in the context of a pre-enforcement facial challenge. That
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`3
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` Cite as: 586 U. S. ____ (2019)
`
`KAVANAUGH, J., dissenting
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`means that the parties have offered, in essence, competing
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`predictions about whether those three doctors can obtain
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`admitting privileges. The District Court concluded that
`the three doctors likely could not obtain admitting privi-
`leges. The District Court therefore enjoined the law. The
`Court of Appeals for the Fifth Circuit concluded that the
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`three doctors likely could obtain admitting privileges. The
`Fifth Circuit therefore lifted the injunction.
`
`
`Before us, the case largely turns on the intensely factual
`question whether the three doctors—Doe 2, Doe 5, and
`Doe 6—can obtain admitting privileges. If we denied the
`stay, that question could be readily and quickly answered
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`without disturbing the status quo or causing harm to the
`parties or the affected women, and without this Court’s
`further involvement at this time. That is because the
`State’s regulation provides that there will be a 45-day
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`regulatory transition period before the new law is applied.
`The State represents, moreover, that Louisiana will not
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`“move aggressively to enforce the challenged law” during
`the transition period, Objection to Emergency Application
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`for Stay 2, and further represents that abortion providers
`will not “immediately be forced to cease operations,” id., at
`25. Louisiana’s regulation together with its express repre-
`sentations to this Court establish that even without ad-
`mitting privileges, these three doctors (Doe 2, Doe 5, and
`Doe 6) could lawfully continue to perform abortions at the
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`clinics during the 45-day transition period. Furthermore,
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`during the 45-day transition period, both the doctors and
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`the relevant hospitals could act expeditiously and in good
`faith to reach a definitive conclusion about whether those
`three doctors can obtain admitting privileges.
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`If the doctors, after good-faith efforts during the 45-day
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`period, cannot obtain admitting privileges, then the Fifth
`Circuit’s factual predictions, which were made in the
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`context of a pre-enforcement facial challenge, could turn
`out to be inaccurate as applied. And if that turns out to be
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`4
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` JUNE MEDICAL SERVICES, L.L.C. v. GEE
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`KAVANAUGH, J., dissenting
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`the case, then even the State acknowledges that the law as
`applied might be deemed to impose an undue burden for
`purposes of Whole Woman’s Health. In that circumstance,
`the plaintiffs could file an as-applied complaint or motion
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`for preliminary injunction in the District Court, and the
`District Court could consider under Whole Woman’s
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`Health whether to enter a preliminary or permanent
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`injunction.
`On the other hand, if the doctors can obtain necessary
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`admitting privileges during the 45-day transition period,
`then the doctors could continue performing abortions at
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`the three clinics both during and after the 45-day transi-
`tion period, as envisioned and predicted by the Fifth Cir-
`
`cuit. And in that circumstance, the Louisiana law as
`applied would not impose an undue burden under Whole
`Woman’s Health.
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`In order to resolve the factual uncertainties presented in
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`the stay application about the three doctors’ ability to
`obtain admitting privileges, I would deny the stay without
`prejudice to the plaintiffs’ ability to bring a later as-
`applied complaint and motion for preliminary injunction
`at the conclusion of the 45-day regulatory transition peri-
`
`od. The Court adopts an approach—granting the stay and
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`presumably then granting certiorari for plenary review
`next Term of the plaintiffs’ pre-enforcement facial chal-
`lenge—that will take far longer and be no more beneficial
`than the approach suggested here. I respectfully dissent
`from the Court’s stay order.
`
`