The Defeat Of A Louisiana Anti-Abortion Law Could Be A “Trojan Horse” For The Anti-Abortion Movement
In the wake of the U.S. Supreme Court’s decision this week to strike down a Louisiana abortion law, the state — and particularly the defense mounted by Attorney General Jeff Landry — has been criticized for its tactics by abortion-rights groups.
The case “vindicates what we have said all along, which is that this is the identical law that was found unconstitutional against Texas,” said Nancy Northup, the president and CEO of the Center for Reproductive Rights, a legal nonprofit that represents the clinic at the heart of the case, Hope Medical Group for Women in Shreveport.
But what appears to be a dramatic loss for the state and national anti-abortion movements could contain a hidden gift. And for those who support abortion access, the decision is widely viewed as what Melissa Murray, an expert in constitutional law and professor at New York University, dubbed a “Trojan Horse” — one planted by Chief Justice John Roberts.
A Tale of Twin Laws
The court’s 5-4 decision to strike down Louisiana’s law in June Medical Services v. Russo rested on a few key factors. But the overriding problem for Louisiana, according to the majority, was this: the law, and its impacts, were nearly identical to a case the court had decided only four years ago.
In the 2016 case Whole Woman’s Health v. Hellerstedt, the court had struck down a Texas law that was a near duplicate of Louisiana’s — indeed, Texas’s H.B. 2 had been the blueprint for Louisiana’s Act 620. By the time lawmakers in Baton Rouge took notice in 2014, Texas’s law had already shut down half of that state’s abortion clinics.
Both laws were created expressly to protect women’s health by requiring doctors at abortion clinics to have admitting privileges at nearby hospitals. After Texas’s law was struck down as unconstitutional — based on the fact it provided no medical benefit but severely restricted access to abortion — Louisiana did not give up the fight.
A year later, a district court ruled Louisiana’s law unconstitutional, but by then President Donald Trump had appointed one justice to the Supreme Court. Speculation simmered that he would get another, and in the summer of 2018, his biggest opportunity arrived with Justice Anthony Kennedy’s resignation. Kennedy had provided the swing vote in the Texas case. The thinking was that replacing him with an anti-abortion justice, Brett Kavanaugh, would give conservatives the five votes they needed to dramatically curtail abortion rights.
That calculation has turned out to be wrong, thanks to Chief Justice Roberts.
The Trojan Horse For Abortion Advocates
On its face, Louisiana lost in a major way in June Medical. All of the court’s four liberal justices and the conservative chief justice sided with the district court’s findings that Louisiana’s law would shutter two of the state’s three abortion clinics without providing any credentialing function for doctors or improving the health outcomes for abortion patients.
Some, including the abortion-rights-leaning editorial board of the New York Times, slammed Solicitor General Liz Murrill in particular for having “bungled the job” during oral arguments and providing answers so “inept” they left the chief justice without much cover to uphold Louisiana’s law, even if had wanted to. That viewpoint was rejected by Louisiana anti-abortion advocates, who praised Murrill’s performance.
But Murray said Roberts has significantly watered down the Texas decision in the process and provided an opening for states to enact restrictive laws that serve to reduce abortion access.
Before Texas’s Whole Woman’s Health case, courts relied on a 1992 Supreme Court decision, Planned Parenthood v. Casey, which instructed judges to consider if abortion laws present a “substantial burden” to a person’s ability to access an abortion.
In the Texas decision, the Supreme Court said that the way to establish if a burden was substantial was to look at the facts and weigh a law’s benefits against its burdens. Abortion-rights groups saw this as a significant strengthening of the review process because it forced states to prove that laws they enacted in the name of health and safety actually served that purpose.
In June Medical, Roberts has gutted that weighing of benefits and burdens. Instead, he wrote, one only need look at the overall obstacle to abortion.
“He's essentially saying that when it comes to a reviewing court, whether a district court or a circuit court, you can make findings of fact but you have to take the legislature at their word,” Murray said.
Ellie Schilling, a lawyer and board member of reproductive rights nonprofit Lift Louisiana, said that will “lead to more litigation overall.
“I think it easily could lead to more restrictions,” she added.
Murray said Roberts has followed a pattern in past abortion rulings from the Supreme Court — where one decision shores up the right to abortion, only to have it diminished in a subsequent ruling.
“It's like a Potemkin village in the same way that Casey says it upholds Roe, but totally eviscerates all of the protections that Roe provided,” Murray said.
Indeed, Roberts went out of his way in his decision to point out that in Casey, the Supreme Court only invalided one anti-abortion law in Pennsylvania, but upheld a handful of others.
“And it's not a surprise, but after Casey, what we saw was a spate of ever more restrictive abortion restrictions, even as Casey said it was preserving Roe,” Murray explained. “It basically made it easier for legislatures to legislate Roe out of existence. So it's kind of death by 1,000 cuts.”
The Anti-Abortion Silver Lining
The piling on of anti-abortion laws has been particularly pronounced of late. More than 33 separate states have enacted a combined 479 abortion restrictions from 2011 to 2019, according to the Guttmacher Institute, a reproductive rights nonprofit. That’s more than a third in a single decade of all restrictions passed since 1973, when Roe v. Wade was decided.
A major focus of states with predominate anti-abortion politics has been to attack abortion through a range of laws that don’t seek to ban it, but can make it harder both to access and to operate as an abortion provider. Legislatures typically say these laws, such as the admitting privileges law, support women’s health and safety.
The anti-abortion movement is by no means thanking the Chief Justice this week. The Judicial Crisis Network, Susan B. Anthony List, Americans United for Life and other prominent anti-abortion groups slammed the chief justice, accusing him of playing politics on the bench and siding with liberal justices who would “rather be doctors than judges,” as Carrie Severino, the president of the Judicial Crisis Network, put it.
Steven Aden, who is now the chief legal officer and general counsel with Americans United for Life, was part of the trial team that originally argued Louisiana’s case in the district court — the trial that provided the evidence the Supreme Court used to strike down Louisiana’s law. Aden did not mince words about Roberts.
“He is weak. He is not a leader. He doesn't broker strong consensus,” Aden said. He called Roberts’s legal views “so idiosyncratic, that nobody can understand them. He's twisted himself into knots on this, and many other cases, to come up with views that only he holds.”
But he did see the silver lining.
“We have now a majority of the court that would apply a stringent Planned Parenthood v. Casey undue burden standard, and that is a good thing for state lawmakers,” he said. “It hopefully will provide some clarity going forward, especially when legislating in the areas of health and safety.”
The only thing this case settled, he said, “is that Act 620 is unconstitutional.”
And while abortion-rights groups see the ruling as burying the issue of admitting privileges laws, Aden disagrees. Roberts' opinion said the laws should be decided on a case by case basis, he noted. He also views standing — the question of whether abortion providers have the right to sue on behalf of their patient’s right to abortion — as up in the air.
How Other Abortion Precedents Could Fall
Beyond the particularities of this one case, Roberts’s vote “settled nothing,” Aden said. “In fact, it was calculated to settle nothing.”
Why? According to Aden, so the chief justice could leave the door open not just to laws that might stand up under Casey, but to that 1992 abortion precedent itself.
“Do I read in the chief justice's opinion intonation that he would consider an attack on Casey? The answer is, yes.”
Aden noted that Roberts described a certain paragraph of that decision — in which the court describes abortion cases as a question of balancing the state’s interest in protecting life and an individual’s interest in defining it for themselves — as presenting “imponderable values” that defy objectivity with “no meaningful way to compare them.”
“It's an impossible task,” Aden said. “And so I find in that paragraph a sarcastic criticism of the central holding of Casey, if you will, and others do too.”
“I don't know what that means down the road,” he said, but added, “it seems like the chief justice regards it as bad philosophy, and probably bad judicial philosophy.”
For Murray, the decision underlines that Trump has not yet created a Supreme Court ready to overturn Roe v. Wade. Not yet.
“I think if they got another justice and they had a six-three majority, they easily would do it,” Murray said.
It’s clear to Murray that Justices Brett Kavanaugh, Neil Gorsuch, Clarence Thomas and Samuel Alito — the dissenters in this case — “are ready to overrule Roe.”
“I think the chief justice is the one who's sort of being more cagey, because he understands that there's political pressure that there will likely be a backlash, that it will seem like the court is mired in partisan politics,” she said. “And he would like a more robust majority before actually taking that step.”
“But when the opportunity presents itself, will they all act in concert?” she added. “Undoubtedly.”