Supreme Court rejects La. abortion clinic law

Justices refuse to hear death penalty question

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 a law that requires doctors who perform abortions must 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 far from 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 Chief Justice 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,” Chief Justice 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 Chief Justice Roberts, a 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 that Justice Neil Gorsuch also joined and wrote.

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

Mr. Trump’s two highcourt picks, Justices Gorsuch and Brett Kavanaugh, were in dissent, along with Justice 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.

In a separate case, the justices said they will not consider a challenge to new federal death penalty protocols proposed by the Justice Department. That decision could clear the way for the government to resume executions as early as July for the first time since 2003.

The court, without comment, declined Monday to take up the lawsuit filed by four death row inmates. As is customary, it gave no reason. Justices Ruth Bader Ginsburg and Sonia Sotomayor indicated they would have accepted the case.

While the decision removes a significant barrier to resuming federal executions, it does not mean they will automatically proceed as scheduled. The individual inmates facing execution all could file additional challenges, which could impact when and if these sentences are carried out.

The Justice Department said Monday that the court’s decision would allow the executions to proceed unless a lower court blocks them on other grounds. But given the Supreme Court’s move, the department expects it would wind up with the same result, said Kerri Kupec, a spokeswoman.

An attorney for one of the inmates assailed the Justice Department for its push to execute the four men, linking the move to the ongoing protests across the country against police violence and racial injustice.

“Even as people across the country are demanding that leaders rethink crime, punishment and justice, the government is barreling ahead with its plans to carry out the first federal executions in 17 years,” attorney Ruth Friedman said in a statement after the court’s decision was released.

“Given the unfairness built into the federal death penalty system and the many unanswered questions about both the cases of the men scheduled to die and the government’s new execution protocol, there must be appropriate court review before the government can proceed with any execution,” said Ms. Friedman, who represents Daniel Lee, the first inmate facing execution.

Attorney General William Barr had announced last summer that the department planned to resume executions using a new lethalinjection procedure that involves a single drug, pentobarbital. After the original timetable was scuttled by challenges to the new lethal injection procedures, the Justice Department laid out a new schedule, announcing plans to carry out three executions in July and a fourth in August. All involve inmates convicted of murdering children.

Lawyers for the death row inmates had challenged the new procedures. A district judge said the government’s new protocol was inconsistent with the Federal Death Penalty Act, a 1994 law requires that federal executions be carried out “in the manner prescribed by the law of the state in which the sentence is imposed.”

A panel of the U.S. Court of Appeals for the D.C. Circuit in the spring ruled 2-1 that the executions could move forward. Judges Gregory Katsas and Neomi Rao — both recent nominees of President Donald Trump — lifted the district judge’s injunction.

Meanwhile, in the abortion case, 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,” Ms. 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 Chief Justice Roberts.

Nancy Northup, president and CEO of the Center for Reproductive Rights, said Monday’s decision by no means 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 one 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,” Ms. Northup said.

In his reasoning, Chief Justice 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 Chief Justice 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.”

Chief Justice 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. Chief Justice Roberts didn’t write anything explaining his position at the time of the Texas case.