In another surprising and disappointing 5-4 ruling, the Supreme Court struck down Louisiana abortion restrictions as unconstitutional. The majority opinion was drafted by Justice Stephen Breyer, but Chief Justice John Roberts joined it, leaving the other four more “conservative” justices (Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch) on their own. Unlike many Supreme Court rulings, this did not set a narrow precedent. There appears to be no upside for conservatives — it is as bad as you think it would be for advocates of the unborn and women’s safety, if not worse.
This was the first big abortion-related case the Supreme Court has heard during the Trump administration. Like most Supreme Court cases, it wasn’t simple, and pro-life advocates didn’t expect the outcome to be simple. However, conservatives did presume Louisiana’s law was legitimate. It was passed by a majority in the legislature, signed by the governor, and was written to be sound, logical, pro-life, pro-science, pro-woman, and pro-health.
Louisiana’s Act 620 passed in 2014 and required abortion providers to have admitting privileges at a hospital within 30 miles. While opponents claimed the law was a targeted restriction on abortion, proponents enacted the provision based “in response to the extensive health and safety violations found in Louisiana abortion clinics.” It was drafted by a black Democratic lawmaker and signed into law by a Democratic governor to protect the health and safety of women. Louisiana already required doctors who perform surgery at outpatient surgical centers to have hospital privileges, and Act 620 simply extended that requirement to include abortion providers.
Rather than seeking admitting privileges at nearby hospitals, abortion providers sued the state, claiming the law restricted a woman’s right to an abortion. But the law didn’t ban or limit abortion. It required abortion providers to be held to the same safety standards as any other facility performing surgeries. As sound as this law seems to most people, particularly pro-life advocates, it is nearly identical to a law the Supreme Court previously found unconstitutional in the case Whole Woman’s Health v. Hellerstedt.
It was to this end and because of this case that the four “liberal” justices plus Roberts decided the law was unconstitutional, case closed. But the news gets worse from there.
The question brought before the Supreme Court was primarily about jurisdiction: Can an abortion provider have “third-party standing” to address a safety regulation on behalf of its patient? In other words, can it intervene on behalf of someone with a complaint the patient hasn’t even made? Not only did the Supreme Court fail to deal with this central question, but it further claims its hands are tied due to (bad) precedent. By the way, nearly every justice explicitly or implicitly in their opinions aligned with Roe v. Wade and Planned Parenthood v. Casey, revealing that not even the tiniest portion of either of those laws are likely to be overturned.
While Kavanaugh, Alito, and Gorsuch drafted dissents (Alito’s was quite strong), only Thomas addressed the multifaceted aspects of this case, including both jurisdiction and the merits of the Louisiana law as it relates to Casey.
If you think other June Medical dissenters are secretly ready to strike down Roe/Casey (and didn’t say so because they weren’t asked), maybe you’re right! But here’s what I know — any one of them could have joined Thomas’s dissent. None of them did.
— David French (@DavidAFrench) June 29, 2020
Thomas wasted no time in obliterating Roberts’s opinion, writing: “But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.” I wish Kavanaugh’s dissent would have been more robust, in favor of overturning precedent, and addressing more substantive issues, but it was not.
Of course, the Supreme Court must address the legal issues before it — whether the abortion provider really had jurisdiction to intervene in this case — and it’s disappointing that a majority skirted over this and leaned heavily on precedent to find the law was unconstitutional. That most judges, save for Thomas, were not willing to attempt to make a case to overturn this, and thus Whole Woman’s Health (which was and is still an awful precedent), is disturbing and egregious both for unborn babies and women’s safety.
Abby Johnson, former Planned Parenthood employee and the inspiration for the book and the film Unplanned, spoke up in a statement about how this new ruling adversely affects women:
Every time a law like this is passed, I applaud its brilliance and fastidiousness to “allow” for the legal right to abortion, which women do have, but to seek to hold abortion providers to a higher standard and, by doing so, save the lives of women who might be subject to poor care in facilities with subpar safety standards. Still, the justices (Thomas notwithstanding) ignore this logic and women’s safety and shrug their shoulders in the name of previously held bad laws. This one, too, will go down in the history books as another law binding women and unborn babies to the evil of abortion with not only cultural support but the legal laziness of a handful of Supreme Court justices.
Sadly, this decision is worse than conservatives could have hoped for because the stakes were so much lower. No one expected abortion rights to be dismantled because that was not the issue here. But the court was not able to refuse to allow a third party to intervene on someone’s behalf or, at the least, preserve the health and safety of women.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
