Louisiana abor­tion law struck down

Roberts sides again with high court’s more lib­eral bloc

Baltimore Sun - - FRONT PAGE - By Mark Sherman

WASHINGTON — A di­vided Supreme Court on Mon­day struck down a Louisiana law reg­u­lat­ing abor­tion clin­ics, re­assert­ing a com­mit­ment to abor­tion rights over fierce op­po­si­tion from dis­sent­ing con­ser­va­tive jus­tices in the first big abor­tion case of the Trump era.

Chief Jus­tice John Roberts and his four more lib­eral col­leagues ruled that the law re­quir­ing doc­tors who per­form abor­tions to have ad­mit­ting priv­i­leges at nearby hos­pi­tals vi­o­lates abor­tion rights the court first an­nounced in the land­mark Roe v. Wade decision in 1973.

The out­come is not the last word on the decades­long fight over abor­tion with dozens of state-im­posed re­stric­tions wind­ing their way through the courts. But the decision was a sur­pris­ing de­feat for abor­tion op­po­nents, who thought that a new con­ser­va­tive ma­jor­ity with two of Pres­i­dent Don­ald Trump’s ap­pointees on board would start chip­ping away at abor­tion ac­cess.

The key vote be­longed to Roberts, who had al­ways voted against abor­tion rights be­fore, in­clud­ing in a 2016 case in which the court struck down a Texas law that was vir­tu­ally iden­ti­cal to the one in Louisiana.

The chief jus­tice ex­plained that he con­tin­ues to think the Texas case was wrongly de­cided, but be­lieves it’s im­por­tant for the court to stand by its prior de­ci­sions.

“The re­sult in this case is con­trolled

by our decision four years ago in­val­i­dat­ing a nearly iden­ti­cal Texas law,” Roberts wrote.

He did not join the opin­ion writ­ten by Jus­tice Stephen Breyer for the other lib­er­als in Mon­day’s decision, and his po­si­tion left abor­tion-rights sup­port­ers more re­lieved than elated.

The case was the third in two weeks in which Roberts, a Pres­i­dent Ge­orge W. Bush ap­pointee, joined the court’s lib­er­als in the ma­jor­ity. One of the ear­lier de­ci­sions pre­served the le­gal pro­tec­tions and work au­tho­riza­tion for 650,000 immigrants who were brought to the U.S. as chil­dren. The other ex­tended fed­eral em­ploy­ment-dis­crim­i­na­tion pro­tec­tions to LGBT Amer­i­cans, a decision Jus­tice Neil Gor­such also joined and wrote.

In dis­sent Mon­day, Jus­tice Clarence Thomas wrote, “Today a ma­jor­ity of the Court per­pet­u­ates its ill-founded abor­tion ju­rispru­dence by en­join­ing a per­fectly le­git­i­mate state law and do­ing so with­out ju­ris­dic­tion.”

Trump’s two high-court picks, Gor­such and Brett Ka­vanaugh, were in dis­sent, along with Sa­muel Al­ito. The pres­ence of the new jus­tices is what had fu­eled hopes among abor­tion op­po­nents, and fears on the other side, that the Supreme Court would be more likely to up­hold re­stric­tions.

The Trump ad­min­is­tra­tion had sided with Louisiana in urg­ing the court to up­hold the law.

White House press sec­re­tary Kayleigh McE­nany crit­i­cized the decision.

“In an un­for­tu­nate rul­ing today, the Supreme Court de­val­ued both the health of moth­ers and the lives of un­born chil­dren by gut­ting Louisiana’s pol­icy that re­quired all abor­tion pro­ce­dures be per­formed by in­di­vid­u­als with ad­mit­ting priv­i­leges at a nearby hos­pi­tal,” McE­nany said.

Mar­jorie Dan­nen­felser, pres­i­dent of the anti-abor­tion Su­san B. Anthony List, said, “Today’s rul­ing is a bit­ter dis­ap­point­ment. It demon­strates once again the fail­ure of the Supreme Court to al­low the Amer­i­can peo­ple to pro­tect the well-be­ing of women from the ten­ta­cles of a bru­tal and profit-seek­ing abor­tion in­dus­try.”

On the other side, sup­port for the decision mixed with a wari­ness that the fu­ture of abor­tion rights ap­pears to rest with Roberts.

Nancy Northup, pres­i­dent and CEO of the Cen­ter for Re­pro­duc­tive Rights, said the decision doesn’t ends the strug­gle over abor­tion rights in leg­is­la­tures and the courts.

“We’re re­lieved that the Louisiana law has been blocked today but we’re con­cerned about tomorrow. With this win, the clin­ics in Louisiana can stay open to serve the 1 million women of re­pro­duc­tive age in the state. But the court’s decision could em­bolden states to pass even more re­stric­tive laws when clar­ity is needed if abor­tion rights are to be pro­tected,” Northup said.

In his rea­son­ing, Roberts “sig­naled a will­ing­ness to lessen the le­gal pro­tec­tions for abor­tion,” Univer­sity of Michi­gan law pro­fes­sor Leah Lit­man wrote on the Take Care blog. How­ever, she also ac­knowl­edged that Roberts’ “em­pha­sis on the im­por­tance of ad­her­ing to the court’s prior de­ci­sions does not sound like the think­ing of a per­son who is in­clined to over­rule Roe v. Wade.”

A trial judge had said the law would not pro­vide health ben­e­fits to women and would leave only one clinic open in Louisiana, in New Or­leans. That would make it too hard for women to get abor­tions, in vi­o­la­tion of the Con­sti­tu­tion, the judge ruled.

But the ap­peals court in New Or­leans re­jected the judge’s find­ings and up­held the law in 2018, doubt­ing that any clin­ics would have to close and say­ing that doc­tors had not tried hard enough to es­tab­lish re­la­tion­ships with lo­cal hos­pi­tals.

The clin­ics filed an emer­gency ap­peal at the Supreme Court, ask­ing that the law be blocked while the jus­tices eval­u­ated the case.

Early last year, Roberts joined with the four lib­eral mem­bers of the court to grant that request and keep the law on hold.

Roberts’ vote was a bit of a sur­prise be­cause of his ear­lier vote in the Texas case. It may have re­flected his new role since Jus­tice Anthony Kennedy’s re­tire­ment as the court’s swing jus­tice, his con­cern about the court be­ing per­ceived as a par­ti­san in­sti­tu­tion and his re­spect for a prior decision of the court, even one he dis­agreed with. Roberts didn’t write any­thing ex­plain­ing his po­si­tion at the time of the Texas case.

The reg­u­la­tions at is­sue in Louisiana are dis­tinct from other state laws mak­ing their way through court chal­lenges that would ban abor­tions early in a preg­nancy. Those in­clude bans on abor­tion once a fe­tal heart­beat is de­tected, as early as 6 weeks, and the al­most total ban passed in Alabama.


Abor­tion-rights ad­vo­cates were handed a vic­tory af­ter the Supreme Court struck down a Louisiana law reg­u­lat­ing clin­ics Mon­day in a 5-4 decision.

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