WASHINGTON – The Supreme Court’s decision in June striking down a Louisiana restriction on abortion clinics is giving abortion opponents an unlikely opportunity in other states.
Officials in Texas, Ohio, Indiana, Kentucky and Oklahoma have in recent weeks argued that the high court’s narrow 5-4 ruling actually bolsters their defense of anti-abortion laws, even though the justices ruled against Louisiana.
The states’ arguments coincide with a federal appeals court decision earlier this month reinstating several abortion restrictions in Arkansas, which was based in part on the Supreme Court’s seemingly pro-choice ruling.
The flurry of activity in federal and state courts is largely due to Chief Justice John Roberts’ concurring opinion in the Louisiana case – one that doomed the state’s restrictions on abortion clinics and doctors but rebutted the standard used by the court’s four liberal justices.
More: Supreme Court strikes down abortion clinic restrictions in Louisiana, a defeat for conservatives
The main opinion by Associate Justice Stephen Breyer said the Louisiana law, which required doctors who perform abortions to have admitting privileges at nearby hospitals, posed a “substantial obstacle” to women seeking abortions without “significant health-related benefits.” Roberts, providing the crucial fifth vote, rejected the use of a balancing test and said the law should fall simply because of a 2016 Supreme Court precedent.
The court, he said, must “treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”
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Abortion opponents have argued in several cases this summer that the five justices agreed only on the need to determine a law’s burdens. That was the standard used by the high court in a 1992 Pennsylvania case that upheld abortion rights as well as reasonable state limits.
Those defending abortion rights have responded that the balancing test standard from 2016 remains intact, giving them the ability to win if a restriction has little or no benefit to mothers or their fetuses.
What’s clear for now is that the Supreme Court’s latest abortion ruling “has led to more litigation, rather than less,” said Julie Rikelman, senior director at the Center for Reproductive Rights, who represented the Louisiana clinic at oral argument in March.
University of Virginia School of Law Professor Richard Re, a scholar on court rulings that produce no majority opinion, said those arguments are likely to persist.
“This is the latest round of debate about what counts as precedent and how you evaluate precedent,” Re said. “The debate will rage on.”
‘Strange world indeed’
The Supreme Court’s ruling June 29 in June Medical Services v. Russo came as a surprise to abortion opponents. The court had struck down a similar restriction on clinics in Texas in 2016, but Associate Justice Anthony Kennedy, who provided the fifth vote, later retired and was replaced by the more conservative Associate Justice Brett Kavanaugh.
Roberts, however, proved once again to be a stickler for process and precedent. He had dissented in the Texas case but said it should be followed in Louisiana.
Still, his separate opinion has opened the door for proponents of other restrictions – such as requirements for ultrasound tests, waiting periods and parental notification, as well as bans on the most common type of second-trimester abortions – to argue that Roberts’ opinion helps their cause.
“The chief justice’s opinion controls, because it announces the only legal proposition on which a majority of justices voting for reversal agreed: substantially burdensome laws may be unconstitutional,” Ohio Attorney General Dave Yost told the U.S. Court of Appeals for the 6th Circuit. Ohio is seeking to stop abortions sought at least in part because of a Down syndrome diagnosis.
Similarly, Kentucky Attorney General Daniel Cameron urged the same appeals court to reconsider its decision striking down a ban on the second-trimester abortion method known as dilation & evacuation.
“Although (the Supreme Court ruling) has six different opinions, the reasoning of Chief Justice Roberts’s opinion governs because it has the only rationale on which the five justices who voted for reversal agreed,” Cameron’s office said.
Abortion rights advocates are fighting back against that argument. While acknowledging that Roberts rejected the liberal justices’ test of balancing burdens and benefits, they said he did not erase prior high court rulings embracing that standard. They pointed to recent court decisions in Maryland and Texas, where judges ruled in their favor.
“It would be a strange world indeed if a single justice could overrule a prior binding decision issued by a majority of the court,” said Jennifer Dalven, director of the American Civil Liberties Union’s reproductive freedom project.
‘Cutting their losses’
Federal district and appeals court judges have been weighing in on both sides.
In Maryland, federal district Judge Theodore Chuang said Roberts did not single-handedly overrule the balancing test, which he then applied in striking down a federal requirement that women visit medical facilities to get abortion medication.
Chuang ruled that in-person visits provide no significant benefit and declared them unnecessary in light of the COVID-19 pandemic. The Trump administration has asked the Supreme Court to block that ruling.
In Texas, a 5th Circuit Court of Appeals panel denied the state’s effort to block a 2017 lower court ruling that struck down the state’s ban on dilation & evacuation, the common second-trimester procedure. President Donald Trump’s nominee on the panel, Judge Don Willett, dissented.
But the 8th Circuit ruling in Arkansas has given abortion opponents hope, as well as the decision by Planned Parenthood to drop its challenge to an Indiana law requiring women to get ultrasound tests at least 18 hours before an abortion procedure. That decision was due, at least in part, to an increased availability of ultrasound tests.
“It seems clear that the positions taken by abortion advocates demonstrate an understanding that their cases have become much harder,” said Steven Aden, chief legal officer at Americans United for Life. “They’re making strategic decisions that show that they’re cutting their losses.”
Responds Rikelman: “The other side is trying to use every means necessary to continue to restrict abortion” as part of a “coordinated national strategy.”
Planned Parenthood isn’t giving up on a separate challenge to Indiana’s parental notice requirement. The two sides in that fight recently returned to court, where Indiana Attorney General Curtis Hill said Roberts had the “controlling opinion” in the Louisiana case. ACLU lawyers said the 2016 Texas decision that used a balancing test “continues to provide the governing undue-burden standard.”
One thing is clear in the wake of the Supreme Court’s latest split decision: Battles over abortion restrictions that continue to rage in lower courts will be forced to address it.
That’s already the case in federal appeals court fights over second-trimester procedure laws in Texas and Oklahoma, Ohio’s Down syndrome law, Indiana’s parental notice law and a Kentucky law requiring abortion providers to have agreements with local hospitals and ambulance services.
As the court fights continue, lawyers on both sides say a potential trend could emerge. Laws that impose restrictions on clinics, doctors and patients could receive more lenient treatment than tougher bans aimed at outlawing abortions at various stages of pregnancy.
The question, Aden said, is “where does the chief justice draw the line?”