High court strikes down Louisiana abor­tion law

ROBERTS CITES 2016 DE­CI­SION HE OP­POSED Rule could have led most of state’s clin­ics to close

The Washington Post - - FRONT PAGE - BY ROBERT BARNES

The Supreme Court struck down a re­stric­tive Louisiana abor­tion law Mon­day, a dra­matic vic­tory for abor­tion rights ac­tivists and a bit­ter dis­ap­point­ment to con­ser­va­tives in the first show­down on the con­tro­ver­sial is­sue since Pres­i­dent Trump’s re­make of the court.

As with other re­cent lib­eral vic­to­ries at the court, Chief Jus­tice John G. Roberts Jr. was key in the 5-to-4 de­ci­sion. He joined the court’s lib­er­als rather than his con­ser­va­tive col­leagues, in­clud­ing Trump’s ap­pointees, Jus­tices Neil M. Gor­such and Brett M. Ka­vanaugh.

Roberts said the Louisiana law could not stand given the court’s 2016 de­ci­sion to over­turn a sim­i­lar Texas law, which re­quired doc­tors who per­form abor­tions to have ad­mit­ting priv­i­leges at nearby hospi­tals.

“The le­gal doctrine of stare de­ci­sis re­quires us, ab­sent spe­cial cir­cum­stances, to treat like cases alike,” Roberts wrote in con­cur­ring with the de­ci­sion. “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 prece­dents.”

Roberts’s vote was all the more strik­ing be­cause he had dis­sented in the Texas case. He wrote that he continues to “be­lieve that the [ Texas] case was wrongly de­cided.” But he said the ques­tion was whether to “ad­here to it in de­cid­ing the present case.”

It was per­haps the most dra­matic ex­am­ple of Roberts’s new role as the piv­otal mem­ber of the court. It in­di­cated that while he sup­ports re­stric­tions on abor­tion — his solo opin­ion in fact tight­ened a con­ces­sion won in the Texas case — he is un­ready at this point to over­haul the court’s ju­rispru­dence sup­port­ing the right of a woman to choose the pro­ce­dure.

The White House is­sued a state­ment crit­i­ciz­ing what it called an “un­for­tu­nate rul­ing.”

“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,” the state­ment from press sec­re­tary Kayleigh Mce­nany said.

She added, “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.”

Jus­tice Stephen G. Breyer wrote the main de­ci­sion in the case, just as he did in the Texas rul­ing four years ago. Jus­tices Ruth Bader Gins­burg, So­nia So­tomayor and Elena Ka­gan joined him, re­sult­ing in this: No women wrote about the case, but all six male jus­tices did.

The ques­tion was whether Louisiana’s 2014 law re­quir­ing doc­tors at abor­tion clin­ics to have ad­mit­ting priv­i­leges at nearby hospi­tals un­duly bur­dens women’s ac­cess to abor­tion. Prac­ti­tion­ers have said it has proved im­pos­si­ble for most of the doc­tors to ac­quire the priv­i­leges, leav­ing only one el­i­gi­ble to per­form the pro­ce­dures.

Breyer said the law is “al­most word-for-word iden­ti­cal” to the Texas law. In that case, now-re­tired jus­tice An­thony M. Kennedy joined the court’s four lib­er­als to form a ma­jor­ity in what was its most im­por­tant en­dorse­ment of abor­tion rights in 25 years.

The court’s 2016 de­ci­sion in Whole Woman’s Health v. Heller­st­edt said the ad­mit­ting-priv­i­leges re­quire­ment “pro­vides few, if any, health ben­e­fits for women, poses a sub­stan­tial ob­sta­cle to women seek­ing abor­tions, and con­sti­tutes an ‘un­due bur­den’ on their con­sti­tu­tional right to do so.”

Hos­pi­tal­iza­tion after an abor­tion is rare, all sides agree, and a lack of ad­mit­ting priv­i­leges by a doc­tor who per­forms the pro­ce­dure is not a bar to the woman get­ting needed med­i­cal care.

Breyer’s de­ci­sion Mon­day read like a re­play of the 2016 rul­ing. The ad­mit­ting-priv­i­leges re­quire­ment pro­vided no ben­e­fit to pro­tect women and was likely to mean that two of Louisiana’s three clin­ics would have to close, im­pos­ing oner­ous prob­lems for thou­sands of women across the state, Breyer wrote.

“The re­quire­ment places a sub­stan­tial ob­sta­cle in the path of a large frac­tion of those women seek­ing an abor­tion for whom it is a rel­e­vant re­stric­tion,” he wrote.

Roberts dis­agreed with Breyer’s rea­son­ing. But he none­the­less con­cluded: “The Louisiana law bur­dens women seek­ing pre­vi­a­bil­ity abor­tions to the same ex­tent as the Texas law, ac­cord­ing to fac­tual find­ings that are not clearly er­ro­neous. For that rea­son, I con­cur in the judg­ment of the Court that the Louisiana law is un­con­sti­tu­tional.”

Each of the court’s four most con­sis­tent con­ser­va­tives wrote separately to de­scribe their dis­agree­ment.

“To­day a ma­jor­ity of the Court per­pet­u­ates its ill-founded abor­tion ju­rispru­dence by en­join­ing a per­fectly le­git­i­mate state law and do­ing so with­out ju­ris­dic­tion,” wrote Jus­tice Clarence Thomas. “As is of­ten the case with le­gal chal­lenges to abor­tion reg­u­la­tions, this suit was brought by abor­tion­ists and abor­tion clin­ics. Their sole claim be­fore this Court is that Louisiana’s law vi­o­lates the pur­ported sub­stan­tive due process right of a woman to abort her un­born child.”

As he has in the past, Thomas said the court’s land­mark rul­ing in Roe v. Wade was made “out of whole cloth, with­out a shred of sup­port from the Con­sti­tu­tion’s text. Our abor­tion prece­dents are griev­ously wrong and should be over­ruled.”

Jus­tice Samuel A. Al­ito Jr. de­nied that Louisiana had not shown that there were ben­e­fits to hav­ing doc­tors ac­quire ad­mit­ting priv­i­leges. And he em­braced an ar­gu­ment that the state raised late in the lit­i­ga­tion: that abor­tion clin­ics should not have stand­ing to protest the reg­u­la­tions.

“The idea that a reg­u­lated party can in­voke the right of a third party for the pur­pose of at­tack­ing leg­is­la­tion en­acted to pro­tect the third party is stun­ning,” Al­ito wrote. “Given the ap­par­ent con­flict of in­ter­est, that con­cept would be re­jected out of hand in a case not in­volv­ing abor­tion.”

But Roberts joined Breyer and the oth­ers in say­ing the court had al­lowed such stand­ing for years, and Louisiana had waived the ar­gu­ment early in the lit­i­ga­tion.

Gor­such crit­i­cized the court’s de­ci­sion-mak­ing and said that its usual rules go by the way­side when “a case touch­ing on abor­tion en­ters the court­room.” Ka­vanaugh said he would have sent the case back to the lower court for ad­di­tional fact-find­ing on the doc­tors’ at­tempts to ac­quire ad­mit­ting priv­i­leges and whether any of the three abor­tion clin­ics would close.

Louisiana has adopted more abor­tion re­stric­tions than any other state, and Gov. John Bel Ed­wards (D) said he was dis­ap­pointed with the case’s out­come.

“Through­out my ca­reer and life as a pro-life Catholic, I have ad­vo­cated for the pro­tec­tion, dig­nity and sanc­tity of life and will con­tinue to do so,” Ed­wards said in a state­ment. “While I voted for the law in ques­tion and am dis­ap­pointed, I re­spect the U.S. Supreme Court’s de­ci­sion and trust that Louisiana and our na­tion will con­tinue to move for­ward.”

Abor­tion rights ac­tivists were happy but wary of what comes next.

“This is a big win that vin­di­cates what we’ve said all along, which is that the Louisiana ad­mit­ting-priv­i­leges law is un­con­sti­tu­tional,” said Nancy Northup, pres­i­dent of the Cen­ter for Re­pro­duc­tive Rights, which led the fight against the law. “This is a vic­tory for the peo­ple of Louisiana and the rule of law, but this case never should have got­ten this far.”

The Supreme Court will soon be called upon to take up other abor­tion re­stric­tions passed in the states, in­clud­ing nearly com­plete bans on the pro­ce­dure.

“The court’s rul­ing to­day will not stop those hell­bent on ban­ning abor­tion,” Northup said. “We will be back in court to­mor­row and will con­tinue to fight state by state, law by law to pro­tect our con­sti­tu­tional right to abor­tion. But we shouldn’t have to keep play­ing whack-a-mole.”

The case is June Med­i­cal Ser­vices v. Russo.

“Louisiana’s law can­not stand un­der our prece­dents.” Chief Jus­tice John G. Roberts Jr., in his con­cur­ring opin­ion

PA­TRICK SE­MAN­SKY/AS­SO­CI­ATED PRESS

An an­tiabor­tion pro­tester holds a sign on the steps of the Supreme Court. After rul­ing Mon­day on Louisiana’s law, the jus­tices will soon be asked to ex­am­ine abor­tion re­stric­tions in other states.

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