U.S. Supreme Court

Supreme Court strikes down restrictive abortion law; Roberts concurrence provides fifth vote

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The U.S. Supreme Court struck down a restrictive Louisiana abortion law in a closely watched case on Monday. A concurrence by Chief Justice John G. Roberts Jr. provided the fifth vote to strike down the Louisiana law, which requires doctors at abortion clinics to have admitting privileges at nearby hospitals.

The Louisiana law is nearly identical to a Texas law struck down 5-3 by the Supreme Court in 2016 in Whole Woman’s Health v. Hellerstedt.

Roberts had dissented in Whole Woman’s Health, which he noted in his concurrence. “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,” Roberts wrote in the new case.

“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like 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. Therefore, Louisiana’s law cannot stand under our precedents,” Roberts added.

Justice Stephen G. Breyer said the Louisiana law should be struck down in an opinion joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

In his concurrence in the judgment, Roberts said the Louisiana law should be evaluated under the “undue burden” framework established in the 1992 Supreme Court decision reaffirming the right to abortion, Planned Parenthood v. Casey.

Roberts said he rejected the addition of a balancing test that was cited in Whole Woman’s Health and the majority in the Louisiana case.

Roberts got four more votes to reject the balancing test from the court’s conservatives, according to a dissent by Justice Brett M. Kavanaugh.

Kavanaugh said that more fact-finding is needed to evaluate the impact of the Louisiana law using “the appropriate legal standards.”

When the Supreme Court ruled on the Texas law in 2016 in Whole Woman’s Health, Justice Anthony M. Kennedy was in the majority. Kavanaugh was the justice appointed to replace Kennedy.

Justice Antonin Scalia had died before the Supreme Court decided the Texas case. His replacement, Justice Neil M. Gorsuch, was also among the dissenters in the Louisiana case.

Each of the four conservatives wrote separate dissents, although a dissent by Justice Samuel A. Alito Jr. was joined in full by Gorsuch and joined partly by Kavanaugh and Clarence Thomas.

Alito said the majority “misuses the doctrine of stare decisis, invokes an inapplicable standard of appellate review and distorts the record.”

Alito argued that the abortion providers who challenged the Louisiana law didn’t have standing. He would have required “the joinder of a plaintiff with standing” and a new trial to determine whether the right to abortion was substantially impaired.

In his dissent, Thomas said Supreme Court precedents “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”

The 5th U.S. Circuit Court of Appeals at New Orleans had upheld the Louisiana law, reasoning that it had a different impact on access to abortion than the Texas law.

The ABA filed an amicus brief that said the 5th Circuit disregarded the precedent set by Whole Woman’s Health, and its decision upholding the Louisiana law should be reversed.

The Louisiana case is June Medical Services v. Russo.

Hat tip to SCOTUSblog, which had early coverage of the decision.

Related articles:

ABAJournal.com: “Recent changes in SCOTUS raise the stakes in upcoming abortion case”

ABAJournal.com: “ABA amicus brief urges SCOTUS to follow precedent in Louisiana abortion case”

ABAJournal.com: “Chemerinsky: Stakes are high as SCOTUS considers 2 major abortion cases”

ABAJournal.com: “Over 200 federal lawmakers urge SCOTUS to reconsider Roe; DOJ takes narrower stance”

ABAJournal.com: “Supreme Court to review Louisiana abortion law nearly identical to Texas law it struck down in 2016”

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