Supreme Court Upholds Abortion Rights but Leaves the Door Open to New Challenges

Chief Justice John Roberts delivered the fifth vote to overturn a Louisiana law, but his opinion still raised concerns among reproductive rights advocates.

Anti-abortion activists demonstrate in front of the US Supreme Court in Washington, DC, on June 29, 2020. - The court rejected Louisiana's restrictions on abortion in a key victory for abortion rights activists. The conservative-leaning court split 5-4 on the decision overruling a state law that requires doctors who perform abortions to have admitting privileges at a nearby hospital. (Photo by NICHOLAS KAMM / AFP) (Photo by NICHOLAS KAMM/AFP via Getty Images)
Anti-abortion activists demonstrate in front of the U.S. Supreme Court in Washington, D.C., on June 29, 2020. Photo: Nicholas Kamm/AFP via Getty Images

With a five-justice plurality, the U.S. Supreme Court deemed unconstitutional a Louisiana law that would have drastically restricted abortion access.

The fifth vote came from Chief Justice John Roberts, who wrote separately from the court’s four more liberal judges to conclude that the case was identical to one resolved in favor of abortion rights just four years ago and that in keeping with that precedent, the Louisiana law must also fall.

“We are just delighted,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said on Monday. “It’s a great victory in Louisiana.”

At issue was a 2014 Louisiana law that would have required all abortion providers to have admitting privileges at nearby hospitals. But abortion is an extremely safe procedure and rarely requires hospitalization. As such, the doctors who provide abortions have scant opportunities to obtain admitting privileges; granting privileges is a bureaucratic process and physicians can be denied for a variety of reasons, including if they don’t regularly admit patients to the hospital. In Louisiana, they can be denied precisely because they perform abortions.

The law was identical to one passed the year before in Texas, which helped lead to the shuttering of half the state’s clinics. (In urging passage of the Louisiana law, supporters gleefully noted the “tremendous success” of Texas’s law in closing clinics.) The Texas law was struck down by the Supreme Court in 2016 in a case known as Whole Woman’s Health v. Hellerstedt. That law, the court ruled, had no health or safety benefit for women and provided an unconstitutional burden on abortion access.

Applying the standard articulated in Whole Woman’s Health, the district court in Louisiana blocked the state’s law from taking effect. But the notoriously conservative 5th U.S. Circuit Court of Appeals subsequently overturned the lower court’s ruling, suggesting in an opinion that wildly reinterpreted the facts of the case that Louisiana’s law was different in purpose and effect than the Texas law. The Center for Reproductive Rights appealed to the Supreme Court, which led to this week’s opinion.

Justice Stephen Breyer (who also authored the Whole Woman’s Health decision), writing for himself and the court’s three female justices, concluded that there was no daylight between the Texas and Louisiana laws and that the evidence in the Louisiana case, known as June Medical Services LLC v. Russo, was “even stronger and more detailed” than the evidence that led the court to strike down the Texas law. Despite the assertion of lawmakers — and the Supreme Court’s dissenting justices — that the law would actually protect women from unfit providers, in practice it would decimate abortion access, Breyer wrote.

Had the law been allowed to take effect, just a single abortion provider would remain to serve the roughly 10,000 women per year who seek abortion services in Louisiana.

Had the law been allowed to take effect, just a single abortion provider would remain to serve the roughly 10,000 women per year who seek abortion services in Louisiana. The resulting burdens — including the potential for hundreds of miles of in-state travel — would disproportionately impact poor women, he wrote. According to Kathaleen Pittman, administrator of Shreveport’s Hope Medical Group for Women, most of the clinic’s patients already have one or more children at home and 75 percent are poor or low income.

Four of the court’s justices — Clarence Thomas, Samuel Alito, and newcomers Neil Gorsuch and Brett Kavanaugh — each wrote separately to decry the plurality’s arguments. Alito held firm to the notion that the admitting privileges law would somehow “protect” women and suggested that the doctors who brought the suit on behalf of themselves and their patients should not be allowed to do so because they have a conflict of interest: It behooves them to fight to block the law, he wrote, but not the women it would protect.

That, of course, presumes that the law would actually provide some safety benefit to women seeking care, which the plurality dismissed. The five justices also rejected an eleventh-hour bid by Louisiana to have the six years of litigation tossed aside by claiming that alleged conflicts of interest meant that the doctors simply didn’t have standing to sue on behalf of patients. Third-party standing is a longstanding legal doctrine that allows plaintiffs, such as Louisiana’s abortion providers, to assert in court the rights of a third party — here, women in need of abortion — who would otherwise face an impediment to vindicating their own rights. In abortion-related litigation, this has been accepted practice for nearly 50 years, since individual women have a right to access abortion but lack a meaningful ability to assert that right in court and have their rights upheld in a timely way.

Early on in the June Medical case, Louisiana signaled that it believed third-party standing was appropriate and as such, as far as the Center for Reproductive Rights was concerned, had waived the issue. But after the case finally made it to the Supreme Court, the state doubled back, claiming that the issue of standing should also be considered. Though the court didn’t have to hear that argument, it ultimately decided it would; some court watchers suggested that the decision was a nod to Thomas, who has long derided the notion of third-party standing, which he wrote about in his dissent from Whole Woman’s Health.

Unsurprisingly, Thomas again penned a dissent hammering at third-party standing. “Today a majority of the court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction,” he wrote. Alito, Gorsuch, and Kavanaugh adopted a similar position, saying that the case should be tossed back and dropped unless an appropriate plaintiff could be attached to it. Both Breyer and Roberts rejected this notion. “In short,” Breyer wrote, “the state’s strategic waiver and a long line of well-established precedents foreclose its belated challenge to the plaintiffs’ standing.”

The outcome of the June Medical case proves what most had suspected going in: Without Roberts’s intervention, the case would have gone the other way, with both Gorsuch and Kavanaugh voting to upend reproductive rights — which, of course, was among the qualities that got them nominated to the court by Trump in the first place.


Louisiana Tests the New Supreme Court on Abortion

Still, Roberts’s vote isn’t a long-term or far-reaching win, nor does it signal some about-face in his thinking on the right to reproductive autonomy. While he rejected the challenge to third-party standing, he didn’t embrace Whole Woman’s Health, which he dissented from in 2016. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” he wrote in his concurrence in June Medical. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”

Given everything — and especially considering that the two state laws are identical — the answer was yes. “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” he wrote. “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.”

While Roberts agreed with the four more liberal justices in concluding that the Louisiana law placed an undue burden on abortion access, he simultaneously reiterated his disagreement with the holding in Whole Woman’s Health, which expanded on the court’s abortion jurisprudence by saying that in determining whether an abortion restriction creates an undue burden on access, the courts should weigh the benefits (if any) that a restriction might afford a patient against its burdens. That’s critical, because the test outlined in a seminal 1992 case would ask only if there was an undue burden — meaning a restriction without any purpose other than blocking access to abortion could nonetheless be considered lawful if the burden it erected wasn’t too great.

“The court’s ruling today will not stop those hellbent on banning abortion.”

Consider the example that journalist Mark Joseph Stern posited in his piece in Slate on the June Medical decision: A state requires a one-week waiting period for abortion during which a patient is required to visit the clinic multiple times to view anti-abortion propaganda films. Under Whole Woman’s Health, such a regulation would certainly be blocked because it has no benefit, only burden. Under Roberts’s reasoning, Stern writes, that law might be upheld. “Yes, the law would put an obstacle in patients’ path to abortion, compelling them to make repeated visits to a clinic that might be hundreds of miles away and spend hours viewing propaganda,” he wrote. “But it is, at least in theory, a surmountable obstacle (even though in reality many women would just give up). So, Roberts may well find that it is not an undue burden.”

Indeed, given that the June Medical decision is a plurality, the opinion narrowest in scope is the one that will control the law going forward. What that will mean for the dozens of abortion cases currently moving through the system remains unclear. At present, the Center for Reproductive Rights alone has 30 cases pending in various courts.

Julie Rikelman, who argued the case for the Center for Reproductive Rights before the Supreme Court, told reporters on a press call Monday that while June Medical is certainly a victory, they are still “concerned” about Roberts’s opinion. “He did say at the start of his opinion that he continues to believe that Whole Woman’s Health was wrongly decided at the time,” she said, which is troubling given the “clear medical consensus that laws such as the admitting privileges law have no health and safety benefits for patients at all.” Ultimately, she said, “the opinion muddies the waters a bit and will lead to more litigation rather than less.”

The win in June Medical has not expanded abortion access but merely maintains the status quo in a country where millions of women of reproductive age face serious barriers to abortion and other reproductive health care. Since 2010, more than 450 restrictions on abortion have been codified, from outright unconstitutional gestational bans (most recently in Tennessee, where lawmakers passed a ban in the dead of night amid the ongoing coronavirus pandemic) to more insidious regulations like the admitting privileges law. Known as targeted regulations on abortion providers, or TRAP laws, such measures often purport to protect women, though most are based on a moralistic embrace of junk science.

“We are continuing to battle against many different types of abortion restrictions,” Rikelman said. “There are restrictions that have piled up over the years in many states, especially in the South and Midwest, that impose barrier after barrier after barrier to abortion access, and they’re incredibly difficult for people to overcome.”

The best way to overcome the avalanche of burdens, Northup said, is to finally pass the Women’s Health Protection Act, a federal measure that would codify reproductive rights. “The court’s ruling today will not stop those hellbent on banning abortion. 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,” Northup said. “But we shouldn’t have to keep playing whack-a-mole.”

For the moment at least, Kathaleen Pittman and her staff are celebrating. It’s been “six years — six very, very long years,” since the case first went to court, she said. “To say we’re elated hardly begins to come close to what we are feeling.” The atmosphere in the clinic this morning when the ruling came down was “giddy,” she said. For now, all three of the state’s clinics remain open for business.

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