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Supreme Court Strikes Down Louisiana Abortion Restrictions Supreme Court Strikes Down Louisiana Abortion Law, With Roberts the Deciding Vote
(about 4 hours later)
WASHINGTON — The Supreme Court on Monday struck down a Louisiana law that could have left the state with a single abortion clinic.WASHINGTON — The Supreme Court on Monday struck down a Louisiana law that could have left the state with a single abortion clinic.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. voting with the court’s four-member liberal wing but not adopting its reasoning. The chief justice said respect for precedent compelled him to vote with the majority. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. voting with the court’s four-member liberal wing but not adopting its reasoning. The chief justice said respect for precedent compelled him to vote with the majority even though he had voted to uphold an essentially identical Texas law in a 2016 dissent.
The case was the court’s first on abortion since President Trump’s appointments of two justices shifted the court to the right. Chief Justice Roberts has in the space of two weeks voted with the court’s liberal wing in three major cases — on job discrimination against lesbian, gay, bisexual and transgender workers, on a program protecting young immigrants known as Dreamers and now on abortion. While the chief justice has on occasion disappointed his usual conservative allies, notably on the Affordable Care Act and adding a citizenship question to the census, nothing in his 15-year tenure on the court compares to the recent run of liberal votes in major cases.
The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. Justice Stephen G. Breyer, writing for the four other justices in the majority, said the Louisiana law was “almost word-for-word identical” to the one from Texas that the Supreme Court struck down in the 2016 decision, Whole Woman’s Health v. Hellerstedt.
The law’s supporters said the law protects the health and safety of women seeking abortions, and that the requirements for obtaining admitting privileges helps ensure the competence of doctors. Opponents disputed that, saying that hospitalizations after abortions are rare, that women would receive medical care at hospitals whether their doctors had admitting privileges or not and that abortion providers are often unable to obtain admitting privileges for reasons unrelated to their competence. In both cases, Justice Breyer wrote, the laws put an undue burden on the constitutional right to the procedure.
The court’s decision to revisit the issue of admissions privileges worried proponents of abortion rights given Chief Justice Roberts’s support for the Texas law. Since that ruling, Justice Anthony M. Kennedy, who voted to overturn the law, was replaced by the more conservative Justice Brett M. Kavanaugh.
In the end, Chief Justice Roberts’s commitment to precedent sank the Louisiana law. “I joined the dissent in Whole Woman’s Health,” he wrote on Monday, “and continue to believe that the 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.”
“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” the chief justice wrote. “Therefore Louisiana’s law cannot stand under our precedents.”
Still, it would be hasty to conclude that he is prepared to strike down other abortion restrictions or that he would vote to sustain Roe v. Wade, the 1973 decision that established a constitutional right to abortion, should a direct challenge to that decision reach the court.
The Louisiana law at issue in the new case was enacted in 2014. It required doctors performing abortions to have admitting privileges at nearby hospitals.
Justice Breyer wrote that the law imposed great burdens on access to abortion but did nothing to protect women’s health, its ostensible goal. He wrote that hospitalizations after abortions are rare, that women would receive medical care at hospitals whether their doctors had admitting privileges or not and that abortion providers are often unable to obtain admitting privileges for reasons unrelated to their competence.
Only two of the five doctors who provide abortions in Louisiana have obtained admitting privileges, one in New Orleans and one in Shreveport. But the Shreveport doctor testified that he could not handle the clinic’s work alone. If the law went into effect, a trial judge concluded, there would be a single doctor in a single clinic, in New Orleans, available to provide abortions in Louisiana.Only two of the five doctors who provide abortions in Louisiana have obtained admitting privileges, one in New Orleans and one in Shreveport. But the Shreveport doctor testified that he could not handle the clinic’s work alone. If the law went into effect, a trial judge concluded, there would be a single doctor in a single clinic, in New Orleans, available to provide abortions in Louisiana.
The judge, John W. deGravelles of the Federal District Court in Baton Rouge, struck down the Louisiana law in 2017, saying it created an undue burden on women’s constitutional right to abortion. The experience of the clinic in Shreveport, Hope Medical Group for Women, showed, he wrote, that the law was a solution in search of a problem. The evidence in the Louisiana case, Justice Breyer wrote, was “even stronger and more detailed” than in the Texas case.
“In the last 23 years, Hope Clinic, which serves in excess of 3,000 patients per year, had only four patients who required transfer to a hospital for treatment,” Judge deGravelles wrote. “In each instance, regardless of whether the physician had admitting privileges, the patient received appropriate care.” The vote in the Texas decision was 5 to 3, with Justice Kennedy joining the court’s four-member liberal wing to form a majority. It was decided by an eight-member court after the death of Justice Antonin Scalia that February. President Trump appointed Justice Neil M. Gorsuch to succeed Justice Scalia.
The law, Judge deGravelles ruled, was essentially identical to the one from Texas that the Supreme Court struck down in the 2016 decision, Whole Woman’s Health v. Hellerstedt. Justice Stephen G. Breyer, writing for the majority in that decision, said courts must consider whether the benefits claimed for laws that put restrictions on abortion outweigh the burdens they put on the constitutional right to the procedure. On Monday, Justice Breyer wrote that the Louisiana law would severely restrict abortion as a practical matter.
There was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment,” Justice Breyer wrote. But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to 20 from 40. “A Shreveport resident seeking an abortion who might previously have obtained care at one of that city’s local clinics would either have to spend nearly 20 hours driving back and forth, or else find overnight lodging in New Orleans,” as the state imposes a waiting period between an initial consultation and the procedure, Justice Breyer wrote. “The burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.”
The vote in that decision was 5 to 3, with Justice Anthony M. Kennedy joining the court’s four-member liberal wing to form a majority. It was decided by an eight-member court after the death of Justice Antonin Scalia that February, and since then, Justice Neil M. Gorsuch was appointed to succeed Justice Scalia and Justice Brett M. Kavanaugh to succeed Justice Kennedy. Justice Breyer concluded that the law poses a “substantial obstacle” to women seeking abortions and places an “undue burden” on their constitutional rights, drawing on tests established in the court’s 1992 ruling in Planned Parenthood v. Casey.
In 2018, a divided three-judge panel of the federal appeals court in New Orleans reversed Judge deGravelles’s ruling and upheld the Louisiana law notwithstanding the Supreme Court’s decision in the Texas case, saying that the law’s benefits outweighed the burdens it imposed. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s plurality opinion.
“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry E. Smith wrote for the majority. In particular, he wrote, “the admitting privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.” In his concurrence, Chief Justice Roberts questioned whether that opinion had imposed an amorphous balancing test not warranted by the court’s precedents. But he said the test announced in the Casey decision was enough to decide the case.
Judge Smith faulted doctors seeking to provide abortions in the state for not trying hard enough to obtain admitting privileges and said abortions would remain available after the law went into effect. “I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law.,” he wrote. “Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation.”
In dissent, Judge Patrick E. Higginbotham wrote that the majority’s ruling was impossible to reconcile with the Supreme Court’s 2016 decision in the Texas case and with its 1992 ruling in Planned Parenthood v. Casey, which banned states from placing an “undue burden” on the constitutional right to abortion. In dissent, Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh, wrote that the Louisiana law protects the health and safety of women seeking abortions and that the requirements for obtaining admitting privileges helps ensure the competence of doctors. The facts on the ground in the two states, he wrote, were enough to require a different conclusion.
“I fail to see,” Judge Higginbotham wrote, “how a statute with no medical benefit that is likely to restrict access to abortion can be considered anything but ‘undue.’” “There is ample evidence in the record showing that admitting privileges help to protect the health of women by ensuring that physicians who perform abortions meet a higher standard of competence than is shown by the mere possession of a license to practice,” Justice Alito wrote. “In deciding whether to grant admitting privileges, hospitals typically undertake a rigorous investigative process to ensure that a doctor is responsible and competent and has the training and experience needed to perform the procedures for which the privileges are sought.”
The full Fifth Circuit refused to rehear the case by a 9-to-6 vote. In dissent, Judge Stephen A. Higginson wrote that the Louisiana law was “equivalent in structure, purpose and effect to the Texas law” invalidated by the Supreme Court in 2016. Chief Justice Roberts disagreed. “Appreciating that others may in good faith disagree,” he wrote, “I cannot view the record here as in any pertinent respect sufficiently different from that in Whole Woman’s Health to warrant a different outcome.”
“I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion,” Judge Higginson wrote. “The majority would not, and I respectfully suggest that the dissenters might not either.”