The Supreme Court has lifted an onerous and unnecessary restriction on abortion in Louisiana and offered the state a remarkable reprimand for adopting the same version of a law that the Supreme Court found unconstitutional four years ago.
In a 5-4 decision in June Medical Services L.L.C. Against Russo, the court found that the Louisiana law that doctors who perform abortions must have approval rights in nearby hospitals does not provide women with health benefits and would drastically restrict access to the procedure, which is likely to result in a clinic and a doctor left in the state would offer abortions.
Judge Stephen G. Breyer, who wrote the main opinion, made it clear in his opening sentence that the Louisiana law was "almost literally identical" to the Texas law that the court had suppressed in the Whole Woman & # 39; s Health case against Hellerstedt four years.
As in the case of Texas, the tribunal upheld a lower court ruling that demanding access to hospitalization privileges would be impossible for many women and difficult for most others to achieve a safe, legal abortion in Louisiana – and not an already very safe procedure would be safer . According to a comprehensive review of published studies, abortion clinics in offices reported a hospitalization risk of less than 0.5% after first-trimester abortion, the most common type.
However, there was ample evidence that obtaining approval rights can be difficult. Hospitals denied doctors privileges for reasons unrelated to their ability to perform outpatient abortions. The court also found that the privilege review did not contribute to the review already undertaken by the State Board of Medical Examiners.
The Supreme Court has again made it clear that it rejects the pretext that these laws are designed to protect women's health. Nothing could be further from the truth. All of these laws – and that is what the court said – make it extremely difficult to get an extremely safe and legal process. And this burden of hardship hits hardest those with the least resources – poor women and skin-colored women and those living in rural areas.
You would think that a Supreme Court ruling in 2016 would be enough to prevent opponents of abortion from passing a law that is identical to the law that the court rejected. But of course they hoped that the court, with two new conservative judges, would see the law on privileges differently in 2020. In fact, they did it. The judges Neil M. Gorsuch and Brett M. Kavanaugh disagreed with the majority.
The surprise (somewhat) was the conservative chief judge, John G. Roberts Jr., who stood up for the liberal judges, although he disagreed with them. In his separate statement, he made it clear that he never supported the decision in the original Texas case, but that "Louisiana's law impairs access to abortion as much as the Texas law for the same reasons. ”
Roberts is not an advocate of abortion rights, but he is an advocate of precedent, and he noted that the Louisiana law could not apply given the Texas decision. And he recognized the pressures women face in countries with restrictive abortion laws. (Louisianas are among the most restrictive.) And that was encouraging at a time when abortion rights are still under attack.
Now that the Supreme Court has twice voided privilege laws, opponents of abortion may stop doing this trick.
However, these decisions are unlikely to prevent Nancy Northup of the Center for Reproductive Rights, whose lawyers argued about the Louisiana case, from calling an "avalanche" of anti-abortion laws.
It is appalling that almost 50 years since the transition from Roe vs. Wade guaranteed a right to a safe, legal abortion – and after landmark Supreme Court cases reaffirmed this decision in 1992 and 2016 – women are still struggling to maintain their legal right to abortion. The Women's Health Protection Act would guarantee a right to abortion and exclude the onerous restrictions that different states have placed on providers and patients. But that is about to rise in Congress. We expect the courts to stop these attempts everywhere – and that's exactly what the Supreme Court did on Tuesday.