WASHINGTON – A narrowly divided Supreme Court struck down state restrictions on abortion clinics Monday for the second time in four years, signaling that its conservative shift under President Donald Trump has not eliminated a deep split over abortion rights.
The court ruled 5-4 that a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals would unduly burden women. Chief Justice John Roberts cast the deciding vote, though he did not sign on to the lead opinion endorsed by the court’s four liberal justices.
The court reached the same conclusion in 2016 regarding a Texas law, but since then, Associate Justice Brett Kavanaugh succeeded retired Associate Justice Anthony Kennedy, giving abortion opponents hope for more substantial restrictions. Kavanaugh joined the dissenters in Monday’s ruling.
Associate Justice Stephen Breyer wrote the plurality opinion in which he agreed with a federal trial court that Louisiana’s law “poses a ‘substantial obstacle’ to women seeking an abortion” and “offers no significant health-related benefits.”
“The law consequently imposes an ‘undue burden’ on a woman’s constitutional right to choose to have an abortion,” Breyer wrote.
Roberts made clear that he dissented from the Texas ruling four years ago but that high court precedents must be followed. Unlike the court’s other conservatives, he accepted the findings regarding the law’s projected impact reached by federal District Court Judge John deGravelles, who was named to the bench by President Barack Obama.
“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” he wrote. “Therefore Louisiana’s law cannot stand under our precedents.”
The chief justice, nominated by President George W. Bush in 2005, has become the court’s swing vote in recent years. He sided with liberal justices two weeks ago in two major decisions extending protections from workplace discrimination to LGBTQ employees and blocking the Trump administration from rescinding a policy that allows about 650,000 young, undocumented people to live and work in the USA without fear of deportation.
Each of the other conservative justices wrote separate dissents in the abortion case. The main one by Associate Justice Samuel Alito, joined at least in part by his colleagues, said the dispute should have been returned to the trial court for additional findings.
Associate Justice Clarence Thomas denounced the court’s precedents.
“Those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” he said. “Our abortion precedents are grievously wrong and should be overruled.”
More: Casting aside its precedents, Supreme Court moves inexorably toward abortion rights
Battle will continue, both sides say
More abortion cases are headed the high court’s way as both sides in the passionate debate focus on the ultimate prize: upholding or overruling the Roe v. Wade decision legalizing abortion nationwide in 1973.
State laws threaten to extend a trend of abortion clinic closures that has slashed the number of independent clinics by one-third in the past eight years, from more than 500 to fewer than 350, according to the Abortion Care Network. Five states – Mississippi, Missouri, North Dakota, South Dakota and West Virginia – each are down to one clinic.
“The court’s ruling today will not stop those hellbent on banning abortion,” said Nancy Northup, president of the Center for Reproductive Rights, which represented June Medical Services in its challenge to the Louisiana law. “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.”
Julie Rikelman, the center’s senior litigation director who argued the case before the high court in March, said Roberts’ refusal to join the four liberal justices in a full-fledged majority opinion “muddies the waters a little bit and will lead to more litigation rather than less.”
Anti-abortion groups agreed the decision won’t end the debate.
“We will not relent until the Supreme Court once again respects the will of the people and ceases its lawless attacks on the right to life and representative government,” said Marjorie Dannenfelser, president of the Susan B. Anthony List. She called the ruling “a bitter disappointment.”
White House press secretary Kayleigh McEnany denounced the decision in a statement.
“Instead of valuing fundamental democratic principles, unelected justices have intruded on the sovereign prerogatives of state governments by imposing their own policy preference in favor of abortion to override legitimate abortion safety regulations,” she said.
Louisiana leads in restrictions
Louisiana, which leads the nation with 89 abortion restrictions passed since 1973, has three clinics left – one each in New Orleans, Baton Rouge and Shreveport. A federal district court judge who struck down the 2014 law found that it probably would force two out of business.
The law was resurrected by a federal appeals court panel, and the full appeals court refused to rehear the case. Judges appointed by Trump all voted with the majority.
In the Texas case, a shorthanded court after the death of Associate Justice Antonin Scalia, ruled 5-3 that requiring doctors to have hospital admitting privileges and clinics to meet surgical center standards imposed hardships on women without serving any medical purpose.
When the Texas law was enacted, only six of the state’s 44 abortion clinics met the new requirements. A court injunction allowed about 20 to remain open, but even after the high court victory, most of those that closed their doors never reopened.
In Louisiana, state legislators and government officials argued that the admitting privileges requirement would not have as great an impact. Still, the Supreme Court refused last year to let it take effect while legal challenges continued, and Roberts cast the deciding vote.
The state, backed by the Trump administration and scores of anti-abortion groups, contended the law is aimed at improving health and safety measures at abortion clinics. But groups such as Americans United for Life are open about wanting to overturn Roe v. Wade.
Abortion rights groups said hospital privileges are elusive for physicians who provide abortions and unnecessary when just 1 in 400 patients need hospitalization. They noted that most of the nearly 10,000 women seeking abortions in Louisiana annually are poor and unable to travel long distances for the overnight stays state regulations require.
It took almost 20 years after Roe v. Wade before the court reinforced both the right to abortion and states’ rights to impose some restrictions in 1992’s Planned Parenthood v. Casey. From 2000 to 2007, the court struck down a state law banning late-term abortions, then upheld a similar federal law.
Last term, the justices upheld an Indiana law requiring the burial or cremation of fetal remains after an abortion. They refused to consider that state’s effort to ban abortions based on sex, race or disability, as well as Alabama’s effort to ban a particular second-trimester method of abortion.