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On Monday, the United States Supreme Court ruled by a vote of 5-4 to strike down Louisiana’s controversial Unsafe Abortion Protection Act that would have restricted the number of abortion clinics in the state.
Conservative Chief Justice John Roberts, who was appointed by George W. Bush, joined the court’s four liberal judges in ruling that the Louisiana law imposed a burden on access to abortion, violating abortion rights given to women in the 1973 landmark Roe v. Wade case.
According to the ruling, the law would have barred doctors from performing an abortion if they didn’t hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced.”
The ruling added that “active admitting privileges” were defined under the law as the doctor’s “ability to admit a patient and to provide diagnostic and surgical services to such patient.” It further required the doctor to be “a member in good standing” of the hospital’s “medical staff.”
The Louisiana law was “almost word-for-word identical” to the Texas abortion law that was struck down by the court in the 2016 case Whole Women’s Health v. Hellerstedt.
Monday’s ruling came as a shock because Roberts, who held the key vote to a majority, had dissented from the Texas ruling on the grounds that there was not enough evidence to establish that the Texas law had contributed to the closing of abortion clinics.
This was the third case in recent weeks in which Roberts joined the liberal judges in a majority. In one case the Supreme Court ruled that DACA immigrants brought to the US as children would continue to have legal and workplace protections. In another, it ruled that workplace discrimination against LGBTQ employees.
In Monday’s ruling Roberts wrote that he believes the Texas case was “wrongly decided” but found it necessary to follow the precedent set by court in blocking the Texas law.
“I joined the dissent in Whole Woman’s Health 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 result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts added. He did not join with the other liberal judges in the majority opinion written by Justice Stephen Bryer.
According to Louisiana state officials, the Act was to “improve abortion safety by means of doctor credentialing.”
However, Justice Bryer stated that the Act was unconstitutional as it imposed a burden on access to abortion, with no protection for women’s health. He added that abortion was a safe procedure, with rare cases of hospitalizations in the aftermath. He further stated that doctors’ lack of admitting privileges were not a hindrance to women receiving medical care, clarifying that often abortion providers didn’t receive admitting privileges for reasons that had little to do with their professional competence.
According to the evidence cited by the ruling, two of the five doctors who currently provide abortions in Louisiana have admitting privileges, one in Shreveport and one in New Orleans.
However, the Shreveport doctor testified in court that he would be unable to handle the clinic burden that would come with being the last abortion provider in northern Louisiana. Had the law been passed, it would have left only one doctor, with one clinic to provide abortions to the approximately 10,000 women who annually seek them.
“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,” Judge Bryer stated in the ruling, joined by liberal justices Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
“The burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.”
Chief Justice Roberts disagreed with Bryer’s opinion but nonetheless maintained that the law was unconstitutional according to the court’s decision on the Texas law.
“The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional,” Roberts stated.
Each of the court’s four conservative justices wrote separate dissents.
Justice Clarence Thomas wrote that Roe v. Wade was made “out of whole cloth, without a shred of support from the Constitution’s text.” He added, “Our abortion precedents are grievously wrong and should be overruled.”
Justice Brett Kavanaugh wrote that the case should be sent back to the lower courts to investigate the doctor’s attempts to acquire privileges and find whether any of the three clinics would close.
Justice Gorsuch leveled criticism on the court’s decision making process, stating that it disregards its usual rules on cases concerning abortion.
Justice Samuel Alito, joined in his dissent by the other three conservative judges, wrote that admitting privileges protect women’s health.
“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.”
The White House criticized the ruling in a statement released by press secretary Kayleigh McEnany.
“In an unfortunate ruling today, the Supreme Court devalued both the health of mothers and the lives of unborn children by gutting Louisiana’s policy that required all abortion procedures be performed by individuals with admitting privileges at a nearby hospital.”
“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,” the statement went on to read.
Although abortion rights groups were pleased with the ruling they were also wary of the court’s impending decisions on other abortion restricts passed in various states.
Their fear is underscored by Roberts’ opinion, included in a footnote, which stated that the “validity of admitting privileges law depends on numerous factors that may differ from state to state."
“We’re relieved that the Louisiana law has been blocked today but we’re concerned about tomorrow," said Nancy Northup, president and CEO of the legal advocacy organization Center for Reproductive Services (CRR) whose lawyers represented June Medical Services in its case against Russo, the interim secretary of Louisiana Department of Health and Hospitals.
Northup added, “The court’s ruling today will not stop those hellbent on banning abortion. 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. But we shouldn’t have to keep playing whack-a-mole.”
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