What just happened?
What is the case about?
In 2014 Louisiana passed a law requiring doctors who perform abortions in the state to have admitting privileges at a nearby hospital. Currently, four abortionists work at the three abortion clinics in Louisiana. Because only one of the physicians has admitting privileges, the law would prohibit the other three from performing abortions unless they meet the requirement.
Opponents of the law claim it violates the precedent set in Planned Parenthood v. Casey that the states cannot put “unnecessary 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.” The court struck down a similar Texas law about admitting privileges in the 2016 case Whole Woman’s Health v. Hellerstedt, claiming the restriction provided no health benefits for women seeking abortions.
“Louisiana has the right to ensure the health and safety of its people by regulating the medical profession,” says Travis Wussow, general counsel and vice president for public policy at the Ethics and Religious Liberty Commission.
“This case should challenge the odd set of cultural assumptions and legal precedents under which the abortion industry operates with near impunity from the scrutiny of standard medical regulations. As abortion clinics claim to be medical providers, then the state is well within its duty to regulate their practices for the safety of women.”
Why is this case different?
A trial judge initially struck down the Louisiana law, saying it was similar to the state law in Texas that was prohibited by the Whole Woman’s Health decision. But a federal appeals court overturned the ban, saying the Louisiana law had better proof it did not violate the “undue burden” standard of the Due Process Clause of the Fourteenth Amendment. Challengers of the law appealed to the Supreme Court, allowing the case to be considered once again.
The main difference, though, has less to do with the details of the case than with the composition of the court. When Whole Woman’s Health was decided the Supreme Court consisted of five pro-abortion justices. But the retirement of Justice Kennedy and the appointment of Justice Kavanaugh provides a situation in which there may be a shift on the court for allowing more restrictions on abortion.
Can the court use this case to overturn Roe v. Wade?
Technically, five justices could decide to use the case to overturn Roe or related abortion precedents. In reality, there is almost no chance of this case being the one that overthrows the abortion regime established by the Roe case. The prime holdout is likely to be Chief Justice Roberts. Many legal experts think Roberts is likely to believe overturning Roe during an election year would harm the trust the American people have in the court.
What would be the best outcome pro-lifers can reasonably expect?
While this case is not likely to lead to the overturning of Roe, it could provide an opportunity to undermine the effect of the unjust precedent. Many pro-life groups argue that the court should abandon the undue burden test in cases challenging the validity of laws that regulate medical professionals who perform abortions. Instead, they say, the case of Washington v. Glucksberg (1997) should serve as the binding precedent. (In that case, the court was asked to determine whether physician assisted-suicide violate the Fourteenth Amendment’s Due Process Clause.)
If the court weakens or overturns the “undue burden” standard it could open the gates for states to impose additional restrictions on abortion.
While this seems like a modest change, it could have a significant effect on abortion law in the United States. Contrary to what many Americans believe, overturning Roe would not ban abortion. Instead, it would merely allow the individual states to decide what laws about abortion should be put in place within their jurisdiction. Eliminating the “undue burden” standard, however, would have much the same effect. While the states could not impose an outright ban on abortion, lawmakers could continue to add restrictions that would make abortion within their states even less common.
“In prior cases when the Court has upheld an abortion regulation, many states have moved ahead to pass similar regulations,” says Clarke Forsythe, senior counsel for Americans United for Life.
Is the Supreme Court expected to rule in a way that benefits the pro-life cause?
Despite being part of the conservative majority, there is no assurance Chief Justice Roberts will vote to uphold the Louisiana restriction. The chief justice has shown an aversion to overturning precedents, including recent precedents established while he was on the court. This means that even though Roberts voted against the decision in Whole Woman’s Health, he might still decide to treat it as binding precedent. (Last year Roberts joined the four liberal justices in issuing a temporary stay prohibiting the Louisiana law from immediately going into effect after the federal court ruling.)
Also, after hearing the oral arguments, many pro-lifers are increasingly pessimistic about the outcome. “It appears [pro-life Americans] best-case scenario is a very small, incremental victory,” David French says. “The worst-case (and perhaps most likely case) is a stinging defeat that reaffirms the constitutional status quo in abortion jurisprudence.” French notes:
In the decades since Roe, pro-life voters and activists have exerted a staggering amount of political energy in the effort to elect presidents who nominate justices who are willing to reverse Roe. Abortion rights activists have responded with their own intense efforts, and the public debate is white-hot
The judiciary has in fact been remade—at least to a degree—but America’s judicial transformation has perhaps affected abortion rights less than any other contentious area of American constitutional law. Put another way, the most activist energy has yielded the least constitutional impact, and if today’s oral argument is any indication, then that dreary stability looks set to continue for the foreseeable future. Pro-life activists are not likely obtaining the outcome they seek.
Even if we lose this case, though, the legal momentum may be on our side.
“The expectations of the country are clearly moving in the direction of expecting the Court sooner or later to send the abortion issue back to the people,” Forsythe adds. “The Court will sooner or later have to revisit Roe v. Wade.”