John Roberts Chooses Precedent Over Ideology in Latest Abortion Fight

newrepublic.com
4 min read
fairly difficult
The chief justice threads a judicial needle and hands the conservative legal movement another disappointing ruling.
The case itself involved a challenge to Act 620, a Louisiana law passed in 2014 that took aim at the state's abortion clinics. It required doctors who perform abortions to obtain admitting privileges at a hospital within a 30-mile radius of the clinic. Laws like Act 620 are known as TRAP laws, meaning "targeted regulation of abortion providers," because they use the state's powers to pass health-and-safety laws to impose onerous requirements on abortion clinics. Since outright bans on abortion would be struck down by the courts, TRAP laws allow pro-life lawmakers to severely reduce legal access to the procedure through other means.

Under Planned Parenthood v. Casey, courts can strike down state laws that affect abortion providers and clinics if they impose an "undue burden" on a person's right to access the procedure. Louisiana's abortion providers sued the state to block Act 620 from going into effect, arguing that it would effectively make the procedure impossible to lawfully obtain in Louisiana. In 2017, a federal district court judge found that Act 620 met that threshold. If fully implemented, he noted, it would leave just one doctor in New Orleans who could lawfully perform abortions. Roughly 10,000 abortions are currently performed in Louisiana each year, the court found. The Fifth Circuit reversed that ruling and upheld the law on appeal, prompting the clinic to ask the Supreme Court to intervene.

If the legal battle over admitting privileges and TRAP laws sounds familiar, that's because it is. The Supreme Court struck down a similar Texas law in Whole Woman's Health v. Hellerstedt in 2016. In that case, Texas had imposed the same admitting-privileges requirement and mandated that clinics meet the standards of an ambulatory surgical center, imperiling a wide swath of abortion providers across the state. The justices ultimately rejected both restrictions. "Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution," Justice Stephen Breyer wrote for the court.

What's changed since Whole Woman's Health? Anthony Kennedy, the justice who provided the fifth vote to strike down the Texas law, retired in 2018. Kennedy played a unique role in America's abortion cases over the last 15 years. He was part of the three-justice troika in Casey that foiled a major push to overturn Roe and created the undue-burden framework. After Sandra Day O'Connor's retirement in 2005, his vote was thought to be all that stood between the court's conservative bloc and a ruling that would overturn or sharply limit Roe and Casey. His replacement, Justice Brett Kavanaugh, carefully…
https://newrepublic.com/authors/matt-ford
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