Read: The coming battle to overturn Roe v. Wade

Breyer was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor—and Anthony Kennedy. (Because Justice Antonin Scalia had died that winter, only eight justices were serving on the Court at the time.) Hellerstedt was the first Supreme Court decision in nearly a generation that struck me as real case law, providing a rule that lower courts could apply, rather than incoherent ad hoc rationalization. The rule it announced, if properly applied, would protect the right to choose abortion from most of the “health” statutes that red-state legislatures have passed since 2010.

But the game changed: Republicans had already blocked the nomination of Merrick Garland. Then Donald Trump took office and gave that seat to Neil Gorsuch. Kennedy resigned, and Brett Kavanaugh, who seems skeptical of abortion rights, was confirmed to the court in a right-wing coup de main. Louisiana, meanwhile, had enacted a statute that was in all respects identical to the Texas law invalidated in Hellerstedt. A district court heard detailed evidence of its effects on the availability of abortion and applied Hellerstedt to strike it down.

Not so fast, said the Fifth Circuit. This case is totally, completely, unquestionably, definitely, and in every way different from the one in Texas. Why? Well, because in this case the doctors supposedly hadn’t really tried to get admitting privileges (the district court heard evidence that they had) and so the law was a-okay. (Besides, look at a map—Louisiana is a whole different shape than Texas.) The barely concealed subtext was: Kennedy’s gone, we own the courts now, and all that silly “precedent” is void.

The point of this outright defiance, of course, was to require the Supreme Court to take up the case and thus allow the justices who had voted to uphold the earlier Texas law (Clarence Thomas, Samuel Alito, and Chief Justice John Roberts) to join the new appointees, Gorsuch and Kavanaugh, to reverse or neuter Hellerstedt, and maybe even Roe and Casey.

But some of these justices (especially Roberts) may not be cynical enough to reverse a four-year-old precedent solely because of two new appointments.

Caitlin Flanagan: The dishonesty of the abortion debate

Louisiana has thus chosen to present the Court with a new argument—a sort of off-ramp that would allow the majority to dodge the Hellerstedt precedent and give the green light to abortion-restricting laws across red America. Louisiana is mounting an attack on doctors’ “standing to sue.” All the Court has to do is say that doctors who provide abortions to pregnant women can no longer go to court to challenge regulations that would put them out of business.

This move involves what the late Ella Fitzgerald might have called “the dipsy doodle” —when words suddenly mean their opposite. Louisiana (joined now by the Trump administration) argues that the physician-plaintiffs in June Medical Services would not really be injured by a law that would put them out of business. The injury, if any, would be to pregnant women, Louisiana and the Solicitor General argue. Thus the doctors are trying to exert “third-party standing” (disfavored in federal litigation) by asserting their patients’ rights rather than their own. And the facts, Louisiana claims, are even worse than that: Abortion providers are not kindly doctors at all—they are mercenary exploiters of pregnant women, and they ought to be viewed as women’s enemies.