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The Next Abortion Challenge

Terry H. Schwadron

Feb. 1, 2019

A pending Supreme Court challenge could set up a shadow showdown over upholding Roe v. Wade, the test either hailed or hated by differing abortion factions before a new conservative Court majority.

On the table is a subordinate question involving the legality of a Louisiana law, a decision seemingly mired in Court politics and expectations that will be a harbinger of Court direction on Roe.

The Louisiana law, modeled after a Texas statute, requires abortion providers to obtain admitting privileges as a hospital within 30 miles of their clinic. In practical terms, it means the end for abortion facilities in rural areas.

It is expected that the Supreme Court will decide whether to hear the challenge in the next week, according to Slate magazine.

As outlined, the background here is straight court politics: In 2016, The Supreme Court struck down the Texas law, known as Whole Woman’s Health v. Hellerstedt, after the name of the clinic involved as the Supreme Court invalidated the Texas statute as an “undue burden” on the constitutional right to abortion access.

But now, the 5thCircuit Court of Appeals had heard a challenge to the Louisiana law, which covers the same legal territory, and upheld it, thus setting up a problem. If the Supreme Court refuses to halt the law’s implementation, it will effectively overrule its 2016 decision in Whole Woman’s Health, setting up the possibility of reversal of Roe v. Wade itself.

As one judge on the Court of Appeals wrote, the Texas and Louisiana laws are “almost identical.” Nevertheless, the appeal court did not follow the decision about Texas.

As Slate magazine noted, “It did not, for one very obvious reason: By the time the 5th Circuit heard a constitutional challenge to Act 620, Justice Anthony Kennedy — who cast the fifth vote to strike down the Texas statute — had retired. He was poised to be replaced by Brett Kavanaugh, a hard-line abortion opponent eager to overturn Roe. And so, in clear anticipation of a shift away from abortion rights, a panel of judges for the 5th Circuit upheld the Louisiana law in June Medical Services v. Gee. The full 5th Circuit then declined to reverse the panel’s decision, with Trump’s four appointees voting to let the ruling stand. (Trump’s fifth appointee to the court, Kyle Duncan, recused himself because he helped defend Act 620 before joining the bench.)”

The two dissenting judges said the appeals court was acting on its own.

In Whole Woman’s Health, the Supreme Court explained that an abortion restriction runs afoul of the Constitution if its burdens on women outweigh its benefits. Texas’ admitting privileges requirement, the court found, heavily burdened the state’s clinics while providing no real benefit to women, rendering it unlawful. Because Louisiana imposed the same requirement, the appeals court was obligated to conclude that it, too, unduly burdened women’s access to abortion in violation of the U.S. Constitution.

Instead, Judge Jerry Smith acknowledged that the Louisiana law grants, at most, “minimal benefits” to women. But he concluded that it is still constitutional because it creates only minor burdens. Smith estimated that the law will close only one of Louisiana’s three remaining abortion clinics, whereas the Texas law would’ve closed about 32 out of 40 of that state’s clinics. As a result, he calculated, Louisiana women will have to wait about an hour longer to obtain an abortion. These burdens, Smith wrote, were too slight to infringe upon the Constitution.

The dissenters argued this was legally nuts. In the Texas case, the Supreme Court did not consider total clinic closures and wait times. It weighed the burdens of the law against the benefits and found that the stringent regulations did nothing to improve women’s health.

This week, Louisiana challengers asked the Supreme Court to stay the law while they appeal the 5th Circuit’s June Medical Services decision. If the court accepts their request, the Louisiana law would be blocked until the Supreme Court either refuses to hear the case or takes it and issues a decision. If the Supreme Court denies their request, the law will take effect on Monday.

The challengers note that the law will actually close all but one Louisiana clinic and strip all but one doctor in the state of the ability to perform abortions.

But the consequences of a 5–4 decision permitting the Louisiana law to take effect would extend far beyond one state. It would indicate that the Supreme Court’s new majority has retreated from Whole Woman’s Health, signaling that states are free to ignore it and pass stringent laws targeting abortion clinics. Once Whole Woman’s Health is functionally overturned, Roe itself will be next on the chopping block.

The case, June Medical Services, puts pressure on Chief Justice John Roberts, the court’s new swing vote. Roberts was a dissenter in Whole Woman’s Health, but insists on court procedure. It is a question as to whether he would be willing to let a lower court defy precedent,.

Those watching the long-term abortion fight see this particular skirmish as definitive as to how the new Court majority will deal with the basics of Roe.

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