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Supreme Court revisits abortion issue over Louisiana law

2014 law is latest inflection point for the cultural, political and legal currents on abortion

The Supreme Court hears arguments Wednesday over the fate of a Louisiana abortion law, but what happens in the courtroom could signal much more about the future of abortion rights across the country.

The challenge to Louisiana’s Act 620, a 2014 law that required doctors who perform abortions to hold admitting privileges at a hospital within 30 miles of the clinic, is the latest inflection point for the cultural, political and legal currents on the contentious issue of abortion.

The case could determine not only access to abortion for Louisiana residents, but also how successful other states can be when enacting similar laws that regulate abortion clinics, and the court’s trajectory for possibly curtailing abortion access more broadly.

It is the first major abortion case at the Supreme Court since the departure of Justice Anthony M. Kennedy — who was central in previous cases that upheld abortion rights — and the arrival of President Donald Trump’s newest appointee, Justice Brett M. Kavanaugh.

Louisiana based its law on a nearly identical Texas law, which the Supreme Court struck down when Kennedy sided with the four justices on the liberal wing in Whole Woman’s Health v. Hellerstedt in 2016.

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Chief Justice John G. Roberts Jr. was in the minority in that Texas case. In a turn in this Louisiana case, he sided with the liberal justices to keep the law from going into effect during the legal challenge.

But Kavanaugh’s arrival means that the court is expected to be more conservative and Roberts now plays a more central role in the overall direction of the decisions. Their words at arguments will be analyzed and over-analyzed for hints about the court’s direction.

Keeping courts out of politics

Roberts’ history suggests a determination to keep the courts as far out of politics as possible. The case also gives individual justices a chance to voice their views on overruling not only Whole Woman’s Health but other landmark abortion decisions.

The court’s conservative majority could target Planned Parenthood v. Casey, a 5-4 decision in 1992 that found states could not enact laws that are an “undue burden” on the right to an abortion. The landmark 1973 decision Roe v. Wade first established that right.

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More than 200 mostly Republican lawmakers, including 39 senators and House Minority Leader Kevin McCarthy of California, filed a brief in January arguing that the Supreme Court should reconsider precedent under Roe and Casey, which upheld abortion rights but allowed for some state restrictions.

That brief states that the case “illustrates the unworkability of the ‘right to abortion’ found in Roe v. Wade  . . .  and the need for the Court to again take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled.”

Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, said the case “could change the landscape of abortion in this country without even having to overturn Roe.”

The court could choose “basically to not formally overturn Roe but effectively gut it completely and they could do that by basically changing how you analyze an abortion restriction under the Constitution,” Borchelt said. “That would give them the opportunity to uphold this Louisiana law and then that could translate into more kinds of abortion restrictions across the country.”

Subject to shifting political winds

A brief from 197 Democratic lawmakers, including Speaker Nancy Pelosi of California and Senate Minority Leader Charles E. Schumer of New York, told the justices that Louisiana’s law was among those that enact “flatly unconstitutional laws” to attack Roe and Casey.

“State legislatures appear emboldened by the change of composition on this Court and may be acting under the presumption that a differently-composed Court will abandon established precedent and ignore the rule of law,” the Democratic-led brief states.

“Settled constitutional principles, however, cannot be subject to shifting political winds, much less the influence of groups that seek to put their own political agenda before the holdings of this Court,” the Democrats wrote in their brief.

And another, less headline-grabbing issue in the case — whether abortion clinics even have the right to bring lawsuits on behalf of their patients — could hamstring clinics that want to challenge these types of regulations in other states.

That issue could be attractive to Roberts if he wants to avoid the appearance of the Supreme Court strongly taking a side in the politically divisive area.

A ruling that the Louisiana abortion clinics can’t bring the lawsuit would avoid directly overturning the precedent in Whole Woman’s Health, allow Louisiana to implement its law and permit conservative states to overcome legal challenges to similar clinic restrictions in the future.

Missouri Republican Sen. Josh Hawley made an argument to the justices along those lines in a brief in the case. Abortion clinics, Hawley wrote, get a legal advantage when they purport to represent women, and “use pleading strategies to shift policymaking power from legislatures to courts.”

For women in Louisiana, the law could leave only one doctor at one abortion clinic in a state that has about 10,000 abortions per year. When Texas initially enforced its law, about half of the state’s abortion facilities were forced to close.

Louisiana officials told the justices, among other arguments, that the circumstances surrounding protecting women’s health in their state are different than in Texas. Opponents of the law argue it’s an undue burden on providers, given that admitting privileges can be difficult to acquire if a religious hospital opposes abortion or the provider does not admit a minimum number of patients per year.

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