VICTORY FOR FREEDOM OF CHOICE

Four years ago, by a vote of 5-3, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions to have the right to admit patients at a nearby hospital. In that case, Justice Anthony Kennedy joined his four more liberal colleagues in holding that, although Texas has a genuine interest in protecting the health of pregnant women, there was no evidence that the law actually did anything to promote that interest – but it did make it more difficult for women to get an abortion. Kennedy is no longer on the court, but today it was Chief Justice John Roberts who joined the court’s four liberals in ruling that a similar law from Louisiana is unconstitutional. Associate Justice Stephen Breyer wrote for the majority, with a concurring opinion by Chief Justice Roberts.

The law at the center of today’s decision is the Louisiana Unsafe Abortion Protection Act, enacted in 2014, which requires doctors who perform abortions in Louisiana to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. After the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt striking down the similar Texas law, a Federal court in Louisiana barred the state from implementing the admitting-privileges requirement. It ruled that the law was unconstitutional because it would impose an “undue burden” on a woman’s right to an abortion. Specifically, the District court (which is the lower court) - after a trial with much evidence submitted-concluded that if the law went into effect, there would be only one doctor in the entire state left performing abortions in the early stages of pregnancy, and none at all performing abortions between 17 and 21 weeks of pregnancy. The U.S. Court of Appeals for the 5th Circuit reversed that ruling, clearing the way for the State to enforce the admitting-privileges requirement.

The plaintiffs (doctors who performed abortions) in today’s case–asked the Supreme Court to intervene and block the Louisiana from putting the law into effect until they could file a petition for review of the 5th Circuit’s decision. In February 2019, Roberts provided the crucial fifth vote to put the law on hold. The Justices agreed to weigh in on the dispute last October and heard oral argument in March.

In an opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer – who also wrote the court’s opinion in Whole Woman’s Health – portrayed the answer to the question before the Court as flowing almost directly from the ruling in the Texas case. The Louisiana admitting-privileges requirement, Breyer explained, “is almost word-for-word identical to Texas’ admitting-privileges law.” Just as in the Texas case, Breyer continued, the District court in Louisiana concluded that the requirement does not provide any real health benefits for women, while at the same time making it “impossible” for abortion providers to get privileges “for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety.” And that in turn, Breyer wrote, prompted the district court to find that the requirement “places a substantial obstacle in the path of women seeking an abortion” in Louisiana.

 

The 5th Circuit reversed, Breyer noted, because it believed that the District court “was mistaken on the facts.” Breyer disagreed. The “extensive record” in the case, Breyer concluded, “supports the District Court’s findings of fact,” which “mirror those made in Whole Woman’s Health in every relevant respect” and therefore lead to the same result: Louisiana’s admitting-privilege requirement is unconstitutional.

With only three other Justices joining his opinion, Breyer needed one more vote to reverse the 5th Circuit’s decision upholding the admitting-privileges requirement. That vote came from Roberts, who agreed with the result that Breyer reached – striking down the requirement – but not with Breyer’s reasoning. Roberts emphasized that he had disagreed with the majority’s decision to strike down the Texas admitting-privileges requirement in 2016 and still believed today that the Texas “case was wrongly decided.” Despite that conviction, Roberts nonetheless agreed with Breyer that the Louisiana law “cannot stand” because of a legal doctrine known as stare decisis – the idea that Courts should generally not overrule their prior precedents. That doctrine, Roberts explained, “requires us, absent special circumstances, to treat like cases alike.” Because the Louisiana admitting-privileges requirement “imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” Roberts concluded, it too must fall.

Justice Clarence Thomas filed a dissenting opinion in which he complained (as he had in the Texas case) that abortion providers lack a legal right to sue – known as standing – on behalf of their patients. But more broadly, Thomas argued, the court’s prior decisions on abortion “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” Those precedents, Thomas contended, “are grievously wrong and should be overruled.”

Justice Samuel Alito filed a dissenting opinion that was joined by Justice Neil Gorsuch and joined in part by Thomas and Justice Brett Kavanaugh. He would send the case back to the lower courts for the challengers to add a plaintiff who (in his view) has a right to sue and for a new trial, at which the District court could determine whether enforcement of the admitting-privileges requirement would actually reduce the number of doctors performing abortions to a level at which “women’s access to abortions would be substantially impaired.” Alito also seemed to cast doubt on whether the abortion providers in this case had truly tried to obtain privileges; he suggested that the District court should require the plaintiffs to show that these doctors had made a real effort to do so.

Gorsuch also filed a separate dissent in which he contended that Roe v. Wade – the court’s 1973 decision recognizing a constitutional right to an abortion – “is not even at issue here.” “The real question” before the court, he argued, “concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.” Gorsuch chronicled the ways in which he believed that Breyer’s opinion fell short on this front, ranging from Breyer’s analysis of standing to his application of the standard that courts apply to challenges, like this one, that seek to invalidate a law in its entirety. “To arrive at today’s result,” Gorsuch concluded, “rules must be brushed aside and shortcuts taken.”

Kavanaugh filed his own separate but brief dissent in which he argued that “additional factfinding is necessary to properly evaluate Louisiana’s law.” As he had last year in an opinion dissenting from the order that blocked the tate from enforcing the law, he maintained that the facts in the case are incomplete. In particular, he noted, the record does not show that three doctors have not been able to obtain admitting privileges, so that three clinics would close as a result of the law.

Today was clearly a victory for freedom of choice for women. Roberts’ concurring opinion signals that efforts to pass similar admitting-privileges requirements in other states may not pass constitutional muster. But the decision was also in many ways a narrow ruling, resting on Roberts’ adherence to the court’s 2016 decision in the Texas case. With four justices very vocal in their opposition to today’s ruling and a number of challenges to other laws regulating abortion in the pipeline, the legal battle over abortion seems likely to continue into the foreseeable future.

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