Abortion rights opponents seize on high court rulings
Despite La. loss, officials see anti-abortion defense
WASHINGTON – The Supreme Court’s decision in June striking down a Louisiana restriction on abortion clinics is giving abortion opponents an unlikely opportunity in other states.
Officials in Texas, Ohio, Indiana, Kentucky and Oklahoma have in recent weeks argued that the high court’s 5-4 ruling actually bolsters their defense of anti-abortion laws, even though the justices ruled against Louisiana.
The states’ arguments coincide with a federal appeals court decision last month reinstating several abortion restrictions in Arkansas, which was based in part on the Supreme Court’s seemingly pro-choice ruling.
The flurry of activity in federal and state courts is largely a result of Chief Justice John Roberts’ concurring opinion in the Louisiana case – one that doomed the state’s restrictions on abortion clinics and doctors but rebutted the standard used by four liberal justices.
The main opinion by Associate Justice Stephen Breyer said the Louisiana law, which required doctors who perform abortions to have admitting privileges at nearby hospitals, posed a “substantial obstacle” to women seeking abortions without “significant healthrelated benefits.” Roberts, providing the crucial fifth vote, rejected a balancing test and said the law should fall because of a 2016 Supreme Court precedent.
The court, he said, must “treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”
Abortion opponents have argued in several cases this summer that the five justices agreed only on the need to determine a law’s burdens. That was the standard used by the court in a 1992 Pennsylvania case that upheld abortion rights as well as reasonable state limits.
Those defending abortion rights have said the balancing test standard from 2016 remains intact, giving them the ability to win if a restriction has little or no benefit to mothers or their fetuses.
What’s clear for now is that the Supreme Court’s latest abortion ruling “has led to more litigation rather than less,” said Julie Rikelman, senior director at the Center for Reproductive Rights, who represented the Louisiana clinic at oral argument in March.
University of Virginia professor Richard Re, a scholar on court rulings that produce no majority opinion, said those arguments are likely to persist.
“This is the latest round of debate about what counts as precedent and how you evaluate precedent,” Re said. “The debate will rage on.”
‘Strange world indeed’
The Supreme Court’s ruling June 29 in June Medical Services v. Russo came as a surprise to abortion opponents. The court had struck down a similar restriction on clinics in Texas in 2016, but Associate Justice Anthony Kennedy, who provided the fifth vote, later retired and was replaced by the more conservative Associate Justice Brett Kavanaugh.
Roberts, however, proved once again to be a stickler for process and precedent. He had dissented in the Texas case but said it should be followed in Louisiana.
Still, his separate opinion has opened the door for proponents of other restrictions – such as requirements for ultrasound tests, waiting periods and parental notification, as well as bans on the most common type of second-trimester abortions – to argue that Roberts’ opinion helps their cause.
“The chief justice’s opinion controls, because it announces the only legal proposition on which a majority of justices voting for reversal agreed: substantially burdensome laws may be unconstitutional,” Ohio Attorney General Dave Yost told the U.S. Court of Appeals for the 6th Circuit. Ohio is seeking to stop abortions sought at least in part because of a Down syndrome diagnosis.
Similarly, Kentucky Attorney General Daniel Cameron urged the same appeals court to reconsider its decision striking down a ban on the second-trimester abortion method known as dilation and evacuation.
“Although (the Supreme Court ruling) has six different opinions, the reasoning of Chief Justice Roberts’s opinion governs because it has the only rationale on which the five justices who voted for reversal agreed,” Cameron’s office said.
Abortion rights advocates are fighting back against that argument. While acknowledging that Roberts rejected the liberal justices’ test of balancing burdens and benefits, they said he did not erase prior high court rulings embracing that standard. They pointed to recent court decisions in Maryland and Texas, where judges ruled in their favor.
“It would be a strange world indeed if a single justice could overrule a prior binding decision issued by a majority of the court,” said Jennifer Dalven, director of the American Civil Liberties Union’s reproductive freedom project.