The Supreme Court upheld the constitutional right to abortion Monday, rejecting a state’s attempts to limit access to the procedure for the second time in four years.
The decision strikes down a 2014 Louisiana law that required physicians performing abortions at clinics to have admitting privileges at a nearby hospital. Justice Stephen Breyer, who wrote the deciding opinion, noted that the law at issue was identical to the one the court considered and struck down in Texas in 2016.
Attorneys for the state argued in front of the justices in March that the law made abortions safer because it ensured that if anything went wrong during an abortion procedure, the patient could be rushed to a nearby hospital.
The Center for Reproductive Rights sued and its attorneys countered that the law was unnecessary – hospitals will admit anyone with a medical emergency and medical complications in first trimester abortions are exceedingly rare. They also argued that obtaining admitting privileges is difficult, and that the law is really designed to make doctors unable to perform abortions and to close abortion clinics in the state.
In a rare move, there is no majority opinion in this case. Chief Justice John Roberts sided with the more liberal justices on the court to strike down the law, but noted that he thinks the precedent that Monday’s decision is based on was wrongly decided. Still, Roberst wrote, he must treat the Louisiana Law the same way the court treated the Texas law in 2016.
Monday’s case, called June Medical Services v. Russo, is nearly identical to the 2016 case Whole Woman’s Health v. Hellerstedt, over a similar law in Texas which caused half of the state’s clinics to close. In that case, the Supreme Court struck down the law which had already gone into effect. In the wake of Justice Antonin Scalia’s death, the 2016 vote was 5-3 with Roberts dissenting.
The 2016 decision reaffirmed the “undue burden standard” – the idea that it is unconstitutional to pass laws creating major barriers to abortion access – a benchmark used by the Supreme Court in every case examining abortion regulations since it was established in the 1992 case Planned Parenthood v. Casey.
Monday’s Supreme Court ruling re-emphasizes the power of this standard.
In his opinion striking down the Louisiana law, Breyer wrote that in Whole Woman’s Health v. Hellerstedt, the court held that ‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ and are therefore ‘constitutionally invalid.'”
Louisiana’s law, Breyer wrote, “almost word-for-word identical to Texas’ admitting-privileges law,” and that the District Court’s findings in the Louisiana case “mirror those made in Whole Woman’s Health in every relevant respect and require the same result.”
“We consequently hold that the Louisiana statute is unconstitutional,” Breyer wrote.
Breyer was joined by Justices Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan, while Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh joined the dissent.
In his separate, concurring opinion, Roberts wrote that he joined the dissent in Whole Woman’s Health and still believes today that the Texas case was wrongly decided.
“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,” he continued, concluding by the end of his opinion that the legal doctrine of stare decisis requires the Supreme Court, “absent special circumstances, to treat cases alike.”
“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” Roberts wrote. “Therefore Louisiana’s law cannot stand under our precedents.”
One argument that Louisiana made before the court that Texas did not is that third party plaintiffs like abortion clinics should not be able to file lawsuits on behalf of their patients. This is the way most abortion cases are fought in court. While third parties are not typically allowed to sue on behalf of others, groups like the Center for Reproductive Rights, Planned Parenthood, and others have often brought cases against anti-abortion regulations on behalf of their clients under a standard called “third-party standing” – in which plaintiffs have a “close relationship” with the damaged parties. The precedent of doctors suing on behalf of their patients goes back to the 1800s.
In response to this claim, Breyer wrote that he believed the state made this point too late. Breyer wrote that the state had already argued this case through several courts for years without arguing that the case was invalid because the clinic should not be able to sue on behalf of its patients.
“And even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis,” Breyer added. “We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.”
The court rejected the state’s claims, allowing clinics and other medical institutions to continue to be able to sue on behalf of their patients.
If the court had sided with Louisiana, the decision could have applied to lawsuits unrelated to abortion and uprooted many cases currently being argued across the country.
Monday’s decision will not be the last of this year’s rulings on reproductive rights. The court also heard two combined cases via video chat in May about the Trump administration’s rules granting employers and universities the ability to refuse to provide birth control coverage for their employees for religious or moral reasons.
The cases, Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, examined challenges to an Obama administration-era rule requiring employers to provide insurance coverage for contraception to their employees, or to apply for an exemption to have that coverage taken over by another entity.
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