Supreme Court’s split decision for abortion rights gives opponents an unlikely boost

August 31, 2020 by No Comments

The Supreme Court’s decision in June striking down a Louisiana restriction on abortion clinics is giving abortion opponents an unlikely opportunity in other states.

Officials in Texas, Ohio, Indiana, Kentucky and Oklahoma have in recent weeks argued that the high court’s narrow 5-4 ruling actually bolsters their defense of anti-abortion laws, even though the justices ruled against Louisiana.

The states’ arguments coincide with a federal appeals court decision earlier this month reinstating several abortion restrictions in Arkansas, which was based in part on the Supreme Court’s seemingly pro-choice ruling.

The flurry of activity in federal and state courts is largely due to Chief Justice John Roberts’ concurring opinion in the Louisiana case – one that doomed the state’s restrictions on abortion clinics and doctors but rebutted the standard used by the court’s four liberal justices. The main opinion by Associate Justice Stephen Breyer said the Louisiana law, which required doctors who perform abortions to have admitting privileges at nearby hospitals, posed a “substantial obstacle” to women seeking abortions without “significant health-related benefits.” Roberts, providing the crucial fifth vote, rejected the use of a balancing test and said the law should fall simply because of a 2016 Supreme Court precedent.

The court, he said, must “treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.” Abortion opponents have argued in several cases this summer that the five justices agreed only on the need to determine a law’s burdens. That was the standard used by the high court in a 1992 Pennsylvania case that upheld abortion rights as well as reasonable state limits.

Those defending abortion rights have responded that the balancing test standard from 2016 remains intact, giving them the ability to win if a restriction has little or no benefit to mothers or their fetuses. What’s clear for now is that the Supreme Court’s latest abortion ruling “has led to more litigation, rather than less,” said Julie Rikelman, senior director at the Center for Reproductive Rights, who represented the Louisiana clinic at oral argument in March.

University of Virginia School of Law Professor Richard Re, a scholar on court rulings that produce no majority opinion, said those arguments are likely to persist.

“This is the latest round of debate about what counts as precedent and how you evaluate precedent,” Re said. “The debate will rage on.”

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