On Monday, the Supreme Court struck down a law that would restrict abortion in Louisiana.
The 5-4 decision in June Medical Services v. Russo declared the law, passed in 2014, unconstitutional. Abortion rights activists claimed the ruling as a victory, particularly for poor women and women of color who would’ve been disproportionately affected by the law.
The Center for Reproductive Rights, the nonprofit legal and advocacy organization that represented the plaintiffs, argued that Louisiana’s law would effectively shutter two of the three abortion clinics in Louisiana. That would’ve left a single doctor to provide abortion care to thousands of women who seek them in the state each year, creating a clear undue burden on patients. Louisiana Attorney General Jeff Landry said the restriction would not close clinics. The ruling means that the state’s three abortion clinics can remain open.
In 2016, the Supreme Court found the same law, when implemented in Texas, unconstitutional.
“With this win, the clinics in Louisiana can stay open to serve the one million women of reproductive age in the state.”
“We’re relieved that the Louisiana law has been blocked today but we’re concerned about tomorrow,” Nancy Northrup, President and CEO of the Center for Reproductive Rights, said in a statement.
“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.”
The split decision could suggest to states interested in passing abortion restrictions that at least four of the justices would side with them in the future.
“Indeed, the Court did not speak with a clear majority opinion which could muddy the waters when clarity is needed to protect abortion rights,” Northrup said.
Stephen Breyer wrote the majority opinion and was joined by Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg. Chief Justice John Roberts wrote a separate concurring opinion. Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented.
Though Roberts agreed that the Louisiana law was unconstitutional, his separate opinion alarmed abortion activists because he wrote that he continues to believe Whole Woman’s Health v. Hellerstedt, the 2016 case in which dissented, had been decided incorrectly.
“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,” Roberts wrote.
In both Whole Woman’s Health and June Medical Services the court considered whether it’s constitutional for states to require physicians who work at abortion clinics to obtain hospital admitting privileges.
However, it does little to stop the relentless attacks on abortion rights. Politicians no doubt will exploit today’s fractured decision to pass even more anti-abortion laws that undermine people’s rights and access to care. #MyRightMyDecision
— Center for Reproductive Rights (@ReproRights) June 29, 2020
Critics say that abortion-related hospital admissions are very rare and that the process for getting privileges is often unpredictable and onerous. Hospitals don’t need to respond to every request and may not explain why they’ve rejected applications. They might dismiss an application because they don’t want to be affiliated with an abortion provider, or because they know abortion-related admissions are rare and therefore a physician won’t be a reliable source of income.
Some clinics in Texas that were subject to admitting-privileges regulations prior to the Supreme Court decision closed because they could not comply with the law. The law’s proponents say the regulation protects a woman’s health if she needs to be admitted to the hospital following an abortion procedure.
The case reached the Supreme Court because the Fifth Circuit Court of Appeals overturned a district court finding that the law, Act 620, was unconstitutional. Landry argued that the legislation is significantly different than Texas’ bill because, among other things, it didn’t impose criminal penalties on providers.
Whole Woman’s Health v. Hellerstedt created a new standard for states aiming to restrict abortion access. Legislation had to be based on fact-based evidence that new regulations would safeguard women’s health and safety without placing an undue burden on patients.
Lawmakers could previously insist they were ensuring women’s health and safety without providing evidence to support their claim. That decision fundamentally strengthened abortion rights for the first time in decades.
In addition to taking up admitting privileges again, the Supreme Court also considered whether abortion providers can challenge state restrictions as a third party. June Medical Services is the corporate name of Hope Clinic, a provider in Shreveport, Louisiana, that sued the state to stop the implementation of Act 620. The majority of justices found that abortion providers like June Medical Services can sue on behalf of their patients to stop state restrictions.
Justice Thomas’ dissent argued that providers should not have such a right.
“Our abortion precedents are grievously wrong and should be overruled,” he wrote.
In his opinion for June Medical Services, Justice Breyer argued that Act 620 would reduce the number of abortion providers, leaving the state with just a single clinic in New Orleans. Even if women could get an appointment at that clinic, patients who would’ve previously sought care in Baton Rouge and Shreveport would be forced to drive several hours.
When factoring in the state’s requirement that patients seeking an abortion undergo an ultrasound and mandatory counseling 24 hours prior to their procedure, Breyer wrote that a Shreveport resident would have to spend nearly 20 hours driving back and forth to New Orleans, or stay overnight in the city. Those burdens, he wrote, “would fall disproportionately on poor women, who are least able to absorb them.”
Lucinda M. Finley, Frank G. Raichle Professor of Trial and Appellate Advocacy at the University of Buffalo School of Law, advised against trying to divine the future of abortion rights based on the court’s decision Monday.
Finley, whose expertise includes reproductive rights, said that Roberts’ opinion, which focuses partly on precedent and deference to trial courts, makes him the court’s “new swing justice” on the issue of abortion access.
“I think today’s decision is yet another reminder that the current Supreme Court is indeed the Roberts Court,” said Finley.
UPDATE: June 29, 2020, 3:16 p.m. PDT This story was updated to include Lucinda M. Finley’s expertise.
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