The Supreme Court upheld the constitutional right to abortion Monday, rejecting a state’s attempts to limit access to the procedure for the second time in four years.
The decision strikes down a 2014 Louisiana law that required physicians performing abortions at clinics to have admitting privileges at a nearby hospital. Justice Stephen Breyer, who wrote the deciding opinion, noted that the law at issue was identical to the one the court considered and struck down in Texas in 2016.
Attorneys for the state argued in front of the justices in March that the law made abortions safer because it ensured that if anything went wrong during an abortion procedure, the patient could be rushed to a nearby hospital.
The Center for Reproductive Rights sued and its attorneys countered that the law was unnecessary — hospitals will admit anyone with a medical emergency and medical complications in first trimester abortions are exceedingly rare. They also argued that obtaining admitting privileges is difficult, and that the law is really designed to make doctors unable to perform abortions and to close abortion clinics in the state.
In a rare move, there is no majority opinion in this case. Chief Justice John Roberts sided with the more liberal justices on the court to strike down the law, but noted that he thinks the precedent that Monday’s decision is based on was wrongly decided. Still, Roberts wrote, he must treat the Louisiana Law the same way the court treated the Texas law in 2016.
Monday’s case, called June Medical Services v. Russo, is nearly identical to the 2016 case Whole Woman’s Health v. Hellerstedt, over a similar law in Texas which caused half of the state’s clinics to close. In that case, the Supreme Court struck down the law which had already gone into effect. In the wake of Justice Antonin Scalia’s death, the 2016 vote was 5–3 with Roberts dissenting.
The 2016 decision reaffirmed the “undue burden standard” — the idea that it is unconstitutional to pass laws creating major barriers to abortion access — a benchmark used by the Supreme Court in every case examining abortion regulations since it was established in the 1992 case Planned Parenthood v. Casey.
Monday’s Supreme Court ruling re-emphasizes the power of this standard.
In a statement following the release of the decision, Nancy Northup, president of the Center for Reproductive Rights, which argued the case, wrote that her organization was “relieved” but concerned about future cases.
“We’re relieved that the Louisiana law has been blocked today but we’re concerned about tomorrow. With this win, the clinics in Louisiana can stay open to serve the one million women of reproductive age in the state,” the statement reads. “But the Court’s decision could embolden states to pass even more restrictive laws when clarity is needed if abortion rights are to be protected.”
In his opinion striking down the Louisiana law, Breyer wrote that in Whole Woman’s Health v. Hellerstedt, the court held that "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ and are therefore ‘constitutionally invalid.’”
Louisiana's law, Breyer wrote, “almost word-for-word identical to Texas’ admitting-privileges law,” and that the District Court’s findings in the Louisiana case “mirror those made in Whole Woman’s Health in every relevant respect and require the same result.”
“We consequently hold that the Louisiana statute is unconstitutional,” Breyer wrote.
Breyer was joined by Justices Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan, while Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh joined the dissent.
In his separate, concurring opinion, Roberts wrote that he joined the dissent in Whole Woman’s Health and still believes today that the Texas case was wrongly decided.
“The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case,” he continued, concluding by the end of his opinion that the legal doctrine of stare decisis requires the Supreme Court, “absent special circumstances, to treat cases alike.”
“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” Roberts wrote. “Therefore Louisiana’s law cannot stand under our precedents.”
On a phone call with the press Monday afternoon, lawyers for the Center for Reproductive Rights said that while the decision was "absolutely a victory," Roberts' opinion "muddied the waters" and opened the door for more abortion-restricting laws to be passed, and more litigation over abortion to come before the court.
"The opinion is concerning to us, but ultimately the court did uphold the rule of law," Julie Rikelman, who argued the case before the Supreme Court, said.
One argument that Louisiana made before the court that Texas did not is that third party plaintiffs like abortion clinics should not be able to file lawsuits on behalf of their patients. This is the way most abortion cases are fought in court. While third parties are not typically allowed to sue on behalf of others, groups like the Center for Reproductive Rights, Planned Parenthood, and others have often brought cases against anti-abortion regulations on behalf of their clients under a standard called “third-party standing” — in which plaintiffs have a “close relationship” with the damaged parties. The precedent of doctors suing on behalf of their patients goes back to the 1800s.
In response to this claim, Breyer wrote that he believed the state made this point too late. Breyer wrote that the state had already argued this case through several courts for years without arguing that the case was invalid because the clinic should not be able to sue on behalf of its patients.
“And even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis,” Breyer added. “We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.”
The court rejected the state’s claims, allowing clinics and other medical institutions to continue to be able to sue on behalf of their patients.
If the court had sided with Louisiana, the decision could have applied to lawsuits unrelated to abortion and uprooted many cases currently being argued across the country.
Justice Thomas wrote the dissenting opinion, writing that the majority of the court “perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.”
However, Thomas focused his dissent on the majority’s holding that clinics should be able to sue on behalf of their patients.
“This suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child,” Thomas wrote. “But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own.”
Article III of the US Constitution, which deals with the rules of judicial power, is generally interpreted to hold that third parties are not legally allowed to file lawsuits on behalf of other people. However, if those parties are found to have “substantial interest” in the case, an exception can be made. In past Supreme Court decisions, the court has found that this exception applies to cases where the plaintiffs have a “close relationship” with the damaged parties, and that a doctor–patient relationship is a close one.
Thomas argued against this precedent applying to Louisiana’s case, even going so far as to say that the Supreme Court lacks “jurisdiction to decide these cases.”
“When a private plaintiff seeks to vindicate someone else’s legal injury, he has no private right of his own genuinely at stake in the litigation,” Thomas wrote. “Even if the plaintiff has suffered damages as a result of another’s legal injury, he has no standing to challenge a law that does not violate his own private rights.”
Justice Samuel Alito wrote a separate dissent joined by Gorsuch. His dissent concurred with Thomas in part, and a separate dissent written by Kavanaugh also partially agreed with Alito’s dissent.
“The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt, … and it’s true they have something in common,” Alito wrote. “In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.”
Alito argued that, outside of the law’s bulldozer attitude, June Medical is “very different” from Whole Woman’s Health.
“The decision in Whole Woman’s Health was not based on the face of the Texas statute, but on an empirical question, namely, the effect of the statute on access to abortion in that State," Alito wrote. “There is no reason to think that a law requiring admitting privileges will necessarily have the same effect in every state.”
Alito’s opinion stated that the Louisiana law is important, and different from Texas’, as it protects patients from “lax practices” at some of Louisiana’s abortion clinics.
Monday’s decision will not be the last of this year’s rulings on reproductive rights. The court also heard two combined cases via video chat in May about the Trump administration's rules granting employers and universities the ability to refuse to provide birth control coverage for their employees for religious or moral reasons.
The cases, Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, examined challenges to an Obama administration-era rule requiring employers to provide insurance coverage for contraception to their employees, or to apply for an exemption to have that coverage taken over by another entity.
This story was updated with additional comment from the Center for Reproductive Rights.