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Supreme Court liberals, with Roberts, strike down Louisiana abortion law

David G. Savage
Los Angeles Times

WASHINGTON – Chief Justice John G. Roberts Jr. and the Supreme Court’s liberal justices dealt a surprising setback to abortion opponents Monday, striking down a restrictive Louisiana law and pledging to stand by past rulings that have upheld a woman’s right to choose abortion.

By a 5-4 vote, the court threw out a Louisiana law that would have required abortion doctors to have admitting privileges at a nearby hospital. If put into effect, it was expected to result in the closing of all but one of the state’s abortion providers.

It came as no surprise that the four liberal justices opposed the law since they struck down a similar Texas law four years ago. But the chief justice, a conservative who had steadily opposed abortion rights in the past and had voted to uphold the Texas law, cast the fifth vote with them, citing precedent as his reason.

It was the court’s first abortion ruling since President Donald Trump’s two appointees took their seats, and it dashed hopes of abortion opponents who expected the more conservative court would move to repeal Roe vs. Wade or at least give states more power to narrow it.

It also marked the third major decision in the last two weeks in which the chief justice joined with the court’s four liberals. The court extended workplace protections for LGBTQ employees and blocked Trump’s repeal of the Obama-era policy that protected so-called Dreamers from deportation.

A statement from the White House press secretary called the decision “unfortunate,” adding that “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.”

Roberts, in a 16-page concurring opinion for June Medical Services vs. Russo, said he did not agree with the liberals’ legal reasoning in rejecting the Louisiana and Texas laws: that the court should balance the health costs and benefits of each abortion regulation. But he said the court should honor the outcome of the Texas decision.

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like 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. Therefore Louisiana’s law cannot stand under our precedent,” he said.

His opinion on Monday suggests he would uphold some further regulations, but not those that greatly hamper women. Roberts also said he would abide – for now – by the court’s 1992 ruling in Planned Parenthood vs. Casey, which reaffirmed the central principle of Roe vs. Wade that states may not put a “substantial obstacle” in front of women seeking abortions.

But in a line that might worry abortion rights advocates, Roberts noted that in the Louisiana case, “neither party has asked us to reassess the constitutional validity of that standard.”

That may suggest he would be open to overturning Roe vs. Wade and the right to abortion if that question were squarely presented to the court.

For years, former Justice Anthony M. Kennedy, a moderate Republican appointee, had cast the deciding votes with liberals to maintain the right to abortion.

Four years ago, the court struck down a Texas law nearly identical to the Louisiana law on the grounds that it put a heavy burden on women seeking abortions because it had the effect of closing more than half of the state’s clinics that provided abortions. Women who lived outside the state’s major cities would be forced to travel hundreds of miles to find an open clinic. By a 5-3 vote, with Kennedy, the court said the burdens of the state’s restrictions greatly outweighed the claimed benefits to health.

Roberts was among the conservative dissenters. After Kennedy retired in 2018 and was replaced by the more conservative Justice Brett M. Kavanaugh, abortion opponents assumed the court was ready to cut back on abortion rights or perhaps repeal Roe vs. Wade entirely.

Last year, four members of the court – Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Kavanaugh – voted to allow the Louisiana law to take effect once it had been upheld by the 5th Circuit Court in New Orleans. But Roberts joined with the four liberals to put the law on hold while its constitutionality was reviewed.

The court heard arguments in March in the Louisiana clinic case fully aware that a dozen states have enacted limited or total bans on abortion. All those laws are on hold, awaiting further signals from the high court. Monday’s decision does not bode well for their survival.

Lawyers for Louisiana defended the admitting privileges rule as a health and safety measure. They said it would help assure that only competent and trusted physicians were performing abortions and that their patients could be quickly transferred to a hospital in an emergency.

Abortion rights lawyers called the rule a sham and a deceptive scheme designed to shut down already embattled abortion clinics. They said that because early abortions are very safe, patients rarely are sent to a hospital. Typically, hospitals extend admitting privileges to doctors who regularly send patients there. And because abortion remains controversial, many hospitals, and especially in small towns and rural areas, are wary of having an affiliation with a doctor who performs abortions.

During the March argument, they told the justices that if the Louisiana law were upheld and the clinic in Shreveport closed, pregnant women could be forced to travel several hundred miles to New Orleans to see a doctor who provides an abortion.

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