Jus­tices strike down Louisiana abor­tion law

The chief jus­tice, a con­ser­va­tive, votes with court’s lib­er­als.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASH­ING­TON — Chief Jus­tice John G. Roberts Jr. joined the Supreme Court’s lib­eral jus­tices to deal a sur­pris­ing set­back to abor­tion op­po­nents on Mon­day, strik­ing down a re­stric­tive Louisiana abor­tion law and reaf­firm­ing the court’s past rul­ings that have up­held a woman’s right to choose.

By a 5-4 vote, the court threw out a Louisiana law that would have re­quired abor­tion doc­tors to have ad­mit­ting priv­i­leges at a nearby hos­pi­tal. If put into ef­fect, it was ex­pected to re­sult in the clos­ing of all but one of the state’s abor­tion providers.

It came as no sur­prise that the four lib­eral jus­tices op­posed the law since they struck down a sim­i­lar Texas law four years ago. But the chief jus­tice, a con­ser­va­tive who has con­sis­tently op­posed abor­tion rights in the past and had voted to up­hold the Texas law, cast the fifth vote with them, cit­ing prece­dent as his rea­son.

It was the court’s first abor­tion rul­ing since Pres­i­dent Trump’s two ap­pointees took their seats, and it dashed hopes of abor­tion op­po­nents who ex­pected the more con­ser­va­tive court to move to re­peal Roe vs. Wade, or at least give states more power to nar­row it.

It also marked the third ma­jor de­ci­sion in the last two weeks in which the chief jus­tice joined with the court’s four lib­er­als. The

court ex­tended work­place pro­tec­tions for LGBTQ em­ploy­ees and blocked Trump’s re­peal of the Obama-era pol­icy that pro­tected so-called Dream­ers from de­por­ta­tion.

A state­ment from the White House press sec­re­tary called the de­ci­sion “un­for­tu­nate,” adding that “un­elected jus­tices have in­truded on the sov­er­eign pre­rog­a­tives of state gov­ern­ments by im­pos­ing their own pol­icy pref­er­ence in fa­vor of abor­tion to over­ride le­git­i­mate abor­tion safety reg­u­la­tions.”

An­tiabor­tion ad­vo­cates cast the loss in po­lit­i­cal terms, say­ing the rul­ing un­der­scored the need to re­elect Trump in Novem­ber so he could ap­point an­other con­ser­va­tive jus­tice to pro­vide the fifth voted needed to re­peal Roe vs. Wade.

“Today’s rul­ing is a a bit­ter dis­ap­point­ment,” said Mar­jorie Dan­nen­felser, pres­i­dent of the Su­san B. An­thony List, which op­poses abor­tion. “It is im­per­a­tive that we re­elect Pres­i­dent Trump and our pro-life ma­jor­ity in the U.S. Se­nate so we can fur­ther re­store the ju­di­ciary, most es­pe­cially the Supreme Court.”

For­mer Vice Pres­i­dent Joe Biden, the pre­sump­tive Demo­cratic pres­i­den­tial nom­i­nee, said the Novem­ber elec­tion would be cru­cial to pro­tect­ing abor­tion rights.

“Let’s be clear: Repub­li­cans in state leg­is­la­tures will stop at noth­ing to get rid of Roe — and we have to be just as strong in our de­fense of it,” Biden said. “They are try­ing to get th­ese laws ap­pealed to the Supreme

Court in the hope that Trump’s jus­tices will vote to over­turn Roe vs. Wade. It’s wrong. It’s per­ni­cious. And we have to stop it.”

Roberts, in a 16-page con­cur­ring opin­ion for June Med­i­cal Ser­vices vs. Russo, said he did not agree with the le­gal rea­son­ing in Jus­tice Stephen G. Breyer’s rul­ing, joined by the three other lib­eral jus­tices, which said that the court should bal­ance the health costs and ben­e­fits of each abor­tion reg­u­la­tion. A sim­i­lar ar­gu­ment was used to strike down the Texas law.

But Roberts con­cluded nev­er­the­less that the court should honor the out­come of the Texas de­ci­sion.

“The le­gal doc­trine of stare de­ci­sis re­quires us, ab­sent spe­cial cir­cum­stances, to treat like cases alike. The Louisiana law im­poses a bur­den on ac­cess to abor­tion just as se­vere as that im­posed by the Texas law, for the same rea­sons. There­fore Louisiana’s law can­not stand un­der our prece­dent,” he said.

Roberts’ de­ci­sion to cross the ide­o­log­i­cal di­vide to sup­port a lib­eral prece­dent is in keep­ing with his stated con­cerns that the court is in­creas­ingly viewed by Amer­i­cans through a par­ti­san lens. In pub­lic state­ments, Roberts likes to say the jus­tices do not de­cides cases as Repub­li­cans or Democrats.

Some Se­nate Repub­li­cans turned their ire on the chief jus­tice. “If the court cares about pre­serv­ing its le­git­i­macy as a non­po­lit­i­cal in­sti­tu­tion, then it shouldn’t make de­ci­sions based on how its judg­ments will be per­ceived po­lit­i­cally,” said Sen. Ben Sasse (R-Neb.).

“The prob­lem with today’s de­ci­sion is ab­so­lutely ter­ri­ble ju­rispru­dence. Sim­ply, bad lawyer­ing.”

Roberts’ opin­ion on Mon­day sug­gested he would up­hold some abor­tion reg­u­la­tions, but not those that greatly ham­per women. Roberts also de­scribed as prece­dent the court’s 1992 rul­ing in Planned Par­ent­hood vs. Casey, which reaf­firmed the cen­tral prin­ci­ple of Roe vs. Wade that states may not put a “sub­stan­tial ob­sta­cle” in front of women seeking abor­tions.

But in a line that might worry abor­tion rights ad­vo­cates, Roberts also noted that in the Louisiana case, “nei­ther party has asked us to re­assess the con­sti­tu­tional va­lid­ity of that stan­dard.” That left open the pos­si­bil­ity that he would be open to over­turn­ing Roe vs. Wade and the right to abor­tion if that ques­tion were squarely pre­sented to the court.

Roberts’ de­fec­tion does not bode well for at least a dozen Repub­li­can states that have en­acted laws in the last two years that would se­verely limit or en­tirely ban abor­tion.

For years, for­mer Jus­tice An­thony M. Kennedy, a mod­er­ate Repub­li­can ap­pointee, had cast the de­cid­ing votes with lib­er­als to main­tain the right to abor­tion.

Four years ago, the court struck down a Texas law nearly iden­ti­cal to the Louisiana law on the grounds that it put a heavy bur­den on women seeking abor­tions be­cause it had the ef­fect of clos­ing more than half of the state’s clin­ics that pro­vided abor­tions. Women who lived out­side the state’s ma­jor cities would be forced to travel hun­dreds of miles to find an open clinic. By a 5-3 vote, with Kennedy, the court said the bur­dens of the state’s re­stric­tions greatly out­weighed the claimed ben­e­fits to health.

Roberts was among the con­ser­va­tive dis­senters at the time. Af­ter Kennedy re­tired in 2018, he was re­placed by the more con­ser­va­tive Jus­tice Brett M. Ka­vanaugh.

Last year, four mem­bers of the court — Jus­tices Clarence Thomas, Sa­muel A. Al­ito Jr., Neil M. Gor­such and Ka­vanaugh — voted to al­low the Louisiana law to take ef­fect once it had been up­held by the U.S. 5th Cir­cuit Court of Ap­peals in New Or­leans. But Roberts joined with the four lib­er­als to put the law on hold while its con­sti­tu­tion­al­ity was re­viewed.

Abor­tion rights ad­vo­cates were re­lieved by Mon­day’s de­ci­sion, but not ready to claim a fi­nal vic­tory.

Kathaleen Pittman, ad­min­is­tra­tor of the Hope Med­i­cal Group for Women in Shreve­port, La., de­scribed the mood at the clinic Mon­day morn­ing as “ab­so­lute gid­di­ness.” But she added, “This week, we’re win­ning the bat­tle, and that means we can stay open to fight an­other day. But as a provider, I’ll tell you, I’m cel­e­brat­ing today, but I’m still wor­ried about our fu­ture.”

Oth­ers said the court nar­rowly avoided a dev­as­tat­ing set­back for women of color. Dariely Ro­driguez, di­rec­tor of the eco­nomic jus­tice project for the Lawyers’ Com­mit­tee for Civil Rights Un­der Law, said, “Louisiana’s law would have had an es­pe­cially stark im­pact on low-in­come Black women who have long faced sys­temic and struc­tural bar­ri­ers to health­care, in­clud­ing abor­tion.”

The court heard ar­gu­ments in the case dur­ing the first week in March, shortly be­fore the court, like much of Wash­ing­ton, shut down be­cause of the coro­n­avirus out­break. The jus­tices sounded closely split, and the chief jus­tice did not sig­nal how he would vote.

Lawyers for Louisiana de­fended the ad­mit­ting priv­i­leges rule as a health and safety mea­sure. They said it would help as­sure that only com­pe­tent and trusted physi­cians were per­form­ing abor­tions and that their pa­tients could be quickly trans­ferred to a hos­pi­tal in an emer­gency.

Abor­tion rights lawyers called the rule a sham and a de­cep­tive scheme de­signed to shut down al­ready em­bat­tled abor­tion clin­ics. They said that be­cause early abor­tions are very safe, pa­tients rarely are sent to a hos­pi­tal. Typ­i­cally, hos­pi­tals ex­tend ad­mit­ting priv­i­leges to doc­tors who reg­u­larly send pa­tients there. And be­cause abor­tion re­mains con­tro­ver­sial, many hos­pi­tals, and es­pe­cially in small towns and ru­ral ar­eas, are wary of hav­ing an af­fil­i­a­tion with a doc­tor who per­forms abor­tions.

Dur­ing the March ar­gu­ment, they told the jus­tices that if the Louisiana law were up­held and the clinic in Shreve­port closed, preg­nant women could be forced to travel sev­eral hun­dred miles to New Or­leans to see a doc­tor who pro­vides an abor­tion.

Times staff writer Jenny Jarvie in Atlanta con­trib­uted to this re­port.

Sarah Sil­biger Getty Images

ABOR­TION op­po­nents rally out­side the Supreme Court in March, when oral ar­gu­ments were tak­ing place.

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