In 2016, the court called Texas restrictions unconstitutional. But the makeup of justices has shifted prior to a similar Louisiana case

Supreme court to consider abortion law almost identical to one it just rejected

The US supreme court will hear a case on severe abortion restrictions in Louisiana that promises to have wide-ranging impacts on women’s lives. But what is astonishing about the case is what is the same – the measure in question is nearly identical to a Texas law the court struck down just three years ago.

In both Texas and Louisiana, restrictive laws required physicians who provide abortions to have formal agreements with local hospitals allowing them to transfer patients if needed. These so-called admitting privileges do nothing to improve safety, reproductive rights advocates argue, since hospitals are already legally bound to treat patients.

However, the difficult-to-obtain agreements are very effective at one thing: shuttering abortion clinics. The court found such laws unconstitutional in 2016, in a case called Whole Women’s Health v Hellerstedt.

“It is extraordinarily rare for the court to take a case that has a fact pattern identical to the one it just decided,” said Lawrence Gostin, a professor at Georgetown University Law School and the faculty director of the O’Neill Institute for National and Global Health Law.

So when an appeals court in Louisiana upheld the state’s severe abortion restrictions, conventional wisdom held that the supreme court would strike down the decision without a hearing.

“Given existing precedent, this should have been an open-and-shut case for the supreme court,” said Megan Donovan, the senior policy manager at the Guttmacher Institute, a reproductive rights research organization.

Robin Marty (@robinmarty) reminder just in case this gets lost in the #SCOTUS #abortion media flood:



Abortion is still legal in Louisiana and this doesn’t close a single clinic right now.

In the decision to hear such a case, said Gostin, the most likely risk is not that women will lose their right to an abortion – at least not right away. Women’s constitutional right to an abortion in the US has been considered settled law since the landmark Roe v Wade case in 1973. It has been reaffirmed many times in case law.

Instead, the risk is the procedure remains legal but inaccessible. For example, the Louisiana law not only requires that physicians have admitting privileges, but also that clinics themselves be like “mini-hospitals”, with wide hallways and expensive machinery.

Those requirements would shutter two of the state’s three clinics, force women to drive further to obtain the procedure, and make it more expensive.

“I’ve begun increasingly to see abortion as more a question of justice than a question of reproductive right, because a woman with the wherewithal in the US will always be able to exercise her reproductive rights,” said Gostin.

“This is a justice issue and an equity issue, because it’s really affecting the poor, the less educated, the rural woman – we need to see this as part of an equal justice concept, not simply reproductive rights,” he said. “It’s much deeper than that in terms of equity and equal protection of the law.”

Since 2016, the supreme court has had two new justices appointed by the Trump administration. Justice Neil Gorsuch replaced the deeply conservative Justice Antonin Scalia upon Scalia’s sudden death. The second was Justice Brett Kavanaugh, who was appointed after Justice Anthony Kennedy – a supporter of abortion rights – retired last year. That tilted to the court to the right, with five likely votes to restrict abortion.

Three of the four liberals on the court are women, and all have voted against further restrictions in abortion rights.

Supreme court likely to rule on Louisiana abortion case months before 2020 election Read more

“It’s strange that not only do we have a political divide on the supreme court, but we have a gender divide,” said Gostin. “When [the court] restricts reproductive rights, and every woman on the court dissents passionately, and the men on the court vote in favor, it’s got to turn your head. It would give me pause.”

Many court-watchers now believe that this season, the first for the new majority to choose its own cases, is likely to usher a new era of conservative decisions.

Although the court has overturned 236 decisions through its history, the speed of reversing the Texas case would probably be unprecedented. In choosing to hear the case, the court established the possibility it could reinterpret the matter or try to differentiate the facts in Louisiana from those in Texas.

Even if the supreme court does not reverse itself, it could chip away at abortion rights by reinterpreting its decision.

“If the Louisiana law is allowed to stand, people seeking abortion care in Louisiana will not be alone in suffering the consequences,” said Donovan. “State legislatures and lower courts hostile to abortion will see it as a green light to play fast and loose with the facts in support of restrictions that further impede access to abortion.”