WASHINGTON—By a 5-4 margin, with GOP-named Chief Justice John Roberts casting the deciding vote, the U.S. Supreme Court on June 29 threw out a restrictive Louisiana anti-abortion law.
That drew cheers from pro-choice and women’s rights groups, who warned, however, that the fight over the right to choose continues, both in the courts and at the ballot box this fall.
“I’m overwhelmed and I’m relieved,” National Abortion Rights Action League President Ilyse Hogue told members during an evening Zoom call to introduce Democrat Sara Gideon, Maine’s strongly pro-choice House Speaker, who is running to unseat GOP incumbent Sen. Susan Collins this fall.
The race, a tossup, is one of those Democrats are counting on to retake U.S. Senate control—and to stop GOP President Donald Trump’s continuing cascade of anti-choice federal judges, many of whom would also be hostile to workers’ rights.
“When you’re walking closer and closer and closer to the edge of the cliff—and the cliff is the drop-off in abortion rights, human rights, civil rights, and LGBTQ rights—each election is the most important of our lifetimes, until you turn around and start walking the other way,” Hogue said.
The four progressive justices, who formed the court plurality, said the state law put too much of a burden on a woman’s right to choose. The law, identical to one Texas enacted several years ago, bars abortions by any doctor who lacks admitting privileges at any hospital within 30 miles of the abortion clinic. The justices tossed that law, 5-4, in 2018.
Texas, and later Louisiana, passed the law as part of a long-term effort by anti-abortion groups nationwide to basically ban abortions by making them impossible to get.
Their schemes include imposing onerous construction requirements on clinics, banning doctors from performing abortions unless they have hospital admitting privileges or—in a case that will work its way up from Tennessee if not elsewhere—banning all abortions after six weeks of pregnancy.
The anti-abortionists use tortured justifications, including protecting mothers’ health, to justify their bans. Texas recently tried to close the few abortion providers there through a state order to divert personal protective equipment to facilities handling coronavirus pandemic victims.
Banning other doctors from performing abortions would have left Louisiana with one million women who need reproductive rights services and one doctor able to provide them, Justice Stephen Breyer wrote in this case, June Medical Services vs Russo.
That ban flies in the face of Roe v Wade, the original 1973 decision declaring a woman has a right to choose, up to the third trimester of pregnancy, he said.
Roberts joined the four progressives, but only on procedural grounds. He said the court should follow its own precedent, and saw no difference between Louisiana’s law and the Texas statute. He voted for the Texas law then, but the majority didn’t. Roberts was uncomfortable reversing course in less than two years.
The difference between 2018 and 2020, though the justices did not say so, was that “swing vote” Justice Anthony Kennedy retired, and Donald Trump-named Brett Kavanaugh replaced him. Kavanaugh joined three other GOP-named conservative justices in voting to uphold Louisiana’s law. One of them, Justice Clarence Thomas, flatly called for tossing out Roe v. Wade as unconstitutional.
Louisiana’s law “is almost word-for-word identical to Texas’ admitting-privileges law,” Breyer said. In Louisiana the doctors could not get hospital privileges “for reasons that have nothing to do with the state’s asserted interests in promoting women’s health and safety.”
“The U.S. District Court’s findings and the evidence underlying them are sufficient to support its conclusion that enforcing the admitting-privileges requirement would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion in the state and imposing substantial obstacles on those who could,” Breyer wrote.
Indeed, he added, four Louisiana doctors who wanted to perform abortions but were faced with the state law’s requirements, tried to obey it “for more than 18 months, and largely failed, to obtain conforming privileges from 13 relevant hospitals.”
Evidence showed “some of the doctors’ applications were denied for reasons having nothing to do with their ability to perform abortions safely, and circumstantial evidence.” That included “evidence that showed the role opposition to abortion plays in some hospitals’ decisions [which] explained why other applications were denied despite the doctors’ good-faith efforts.”
All that combined to restrict if not outright prevent access to safe and legal abortion in Louisiana, Breyer wrote, and that’s illegal under Roe v. Wade.
Other pro-choice groups agreed with NARAL’s take. “Access to abortion enables us to control our destiny, to be truly free,” wrote Minouche Kandel, a senior staff attorney with the ACLU.
“I was privileged from a young age to know that I would always be able to control that destiny—because my parents knew doctors, because I had a job that gave me health insurance, because I lived in a state that protected my rights. But it shouldn’t matter where you work, what your ZIP code is, or whom your parents know, to be free.”
“We were pleasantly surprised by this outcome considering Chief Justice John Roberts, who joined the four liberal justices to uphold the law, is famously hostile to abortion,” Indivisible.org said in a statement. “But let’s be clear: Roberts made his decision based on a technicality (that the court should abide by precedent), not because he believes that women or trans folks who need abortions deserve to make decisions for themselves.”
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