Supreme Court has nu­mer­ous ways to kill Roe v. Wade

Woonsocket Call - - OPINION - By LEAH LITMAN Litman is an as­sis­tant pro­fes­sor at the Univer­sity of Cal­i­for­nia at Irvine School of Law.

Spe­cial to The Washington Post

The Supreme Court gave re­pro­duc­tive jus­tice ad­vo­cates an un­ex­pected win on Thurs­day night when it voted 5-4 to stay a court of ap­peals’ de­ci­sion that could have closed abor­tion clin­ics in Louisiana. The chief jus­tice joined the four more lib­eral jus­tices in vot­ing to pre­vent the Louisiana law from go­ing into ef­fect. That small achieve­ment un­der­scores how much pro­gres­sives stand to lose with the new court and how low our stan­dards for vic­tory have be­come.

At is­sue in June Med­i­cal Ser­vices v. Gee is a Louisiana law that re­quires abor­tion providers to ob­tain ad­mit­ting priv­i­leges at a hos­pi­tal within 30 miles of where the providers per­form abor­tions. Just two and a half years ago, the Supreme Court held that very same re­quire­ment un­con­sti­tu­tional when Texas en­acted it.

The U.S. Court of Ap­peals for the 5th Cir­cuit main­tained that the bur­dens im­posed by Louisiana’s ad­mit­ting priv­i­leges re­quire­ment are less se­vere than the bur­dens im­posed by the same re­quire­ment in Texas. The Texas law would have shut­tered some 20 clin­ics, whereas Louisiana’s law would shut­ter only one or two of the state’s three clin­ics. Sim­i­larly, the 5th Cir­cuit ac­knowl­edged that it did not have any ev­i­dence that the Louisiana ad­mit­ting-priv­i­leges re­quire­ment would help the health or safety of any women, even though it cre­ated a bur­den on providers and their pa­tients. That is the stan­dard the Supreme Court set in the Texas case for when a law is un­con­sti­tu­tional, but the court of ap­peals said that it could imag­ine how it might be plau­si­ble to think the re­quire­ment might ben­e­fit some women. But the court said that it could imag­ine how it might be plau­si­ble to think the re­quire­ment might ben­e­fit some women.

It is easy to see how this kind of anal­y­sis will make safe, ac­ces­si­ble abor­tions a thing of the past in many parts of the United States. If a law does not amount to an un­con­sti­tu­tional bur­den un­less it does some­thing as dra­matic as close 20 clin­ics in a ge­o­graphic area as large as Texas, al­most ev­ery law would be con­sti­tu­tional. And if a law does not amount to an un­con­sti­tu­tional bur­den if courts can in­vent a jus­ti­fi­ca­tion for it, then laws would be up­held even when there is no ev­i­dence that they would help any woman, ever.

That is how Roe v. Wade will die. Not with a bang, but with a mil­lion lit­tle dis­tinc­tions that judges will draw to limit the im­pact of any cases that in­val­i­date re­stric­tions on abor­tion. By vot­ing to al­low the Louisiana law to go into ef­fect, four jus­tices gave the OK to states and lower courts to limit Roe by what- ever means nec­es­sary.

To­day, re­pro­duc­tive jus­tice ad­vo­cates had rea­son for mo­men­tary cel­e­bra­tion only be­cause there were not yet five jus­tices who were will­ing to al­low the Louisiana law to go into ef­fect at this mo­ment. This re­prieve may last mere months. The court is only one vote away from al­low­ing the states and the lower fed­eral courts to all but over­turn a Supreme Court case that was de­cided as re­cently as 2016. That is not a cause for cel­e­bra­tion; it is barely a rea­son to ex­hale.

The only other bread­crumb for re­pro­duc­tive jus­tice ad­vo­cates was the bit­ter­sweet con­fir­ma­tion that they were right about Jus­tices Neil Gor­such and Brett Ka­vanaugh af­ter all. The two new­est jus­tices voted to al­low the Louisiana law to go into ef­fect, de­spite re­peat­edly pledg­ing in their con­fir­ma­tion hear­ings to re­spect ex­ist­ing Supreme Court prece­dent even when they think it is wrong.

Ka­vanaugh alone chose to ex­plain his vote, sug­gest­ing he has some mod­icum of shame. But what Ka­vanaugh said con­firms what re­pro­duc­tive jus­tice ad­vo­cates warned about his ten­ure on the court of ap­peals: He will make flimsy dis­tinc­tions with Supreme Court cases that fa­vor ac­cess to abor­tion, and he will im­pose osten­si­bly pro­ce­dural ob­sta­cles that may have the prac­ti­cal ef­fect of deny­ing women ac­cess to abor­tion en­tirely by mak­ing it pro­hib­i­tively dif­fi­cult to chal­lenge re­stric­tions on abor­tion.

Ka­vanaugh in­sisted that the court did not have to block the Louisiana law be­cause Louisiana had rep­re­sented in its brief to the Supreme Court that it would not ac­tu­ally en­force the law. But a promise not to en­force a law is not a rea­son to al­low that law to go into ef­fect, par­tic­u­larly when the court has de­clared that same law un­con­sti­tu­tional just two years ago. And even a small risk that the law would be en­forced would have dras­tic con­se­quences, be­cause if a clinic closes even tem­po­rar­ily, it may not ever re­open. This dis­sent makes clear how Ka­vanaugh will bend over back­ward to limit ac­cess to abor­tion, and al­low re­stric­tions on abor­tion to go into ef­fect based on noth­ing more than a pinkie swear.

The Louisiana law was the new court’s first chance to gut Roe. Four jus­tices would have taken it, and al­lowed Louisiana to en­force the very same law that the court had so re­cently in­val­i­dated. At this point, the ques­tion is how long will Chief Jus­tice John Roberts Jr. stand be­tween those four jus­tices and an open sea­son on Roe v. Wade, the rule of law and re­spect for prece­dent. THE CALL — Mon­day, Fe­bru­ary 11, 2019

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