Judges on Thursday also rejected a case questioning whether governments can protect areas in front of abortion clinics from the protests, as well as a separate challenge from Indiana over the state’s effort to revoke the license of a abortion clinic in South Bend to operate.
The court’s decision to send the Indiana cases again for further consideration suggests that judges are not eager to immediately return to the national fight for abortion, and that Louisiana’s decision may have far-reaching effects in the battle for the right to terminate a pregnancy. .
It also indicates that the vote of Supreme Court President John Roberts with liberal court judges to repeal the Louisiana law earlier this week was not the victory for abortion rights advocates that many assumed. Roberts said his vote in the case was subject to precedents, as the court in a 2016 case, Whole Woman’s Health v. Hellerstedt, rejected a nearly identical Texas law that also required abortion providers to have admission privileges at local hospitals.
“Liberal judges said courts must balance the burdens with the benefits when deciding on abortion laws,” explained Mary Ziegler, a law professor at Florida State University. “Roberts said he did not agree, that a law could be completely useless, but as long as it is not onerous it can be constitutional. That departs significantly from the precedent in Comprehensive women’s health and it means that future courts may be more likely to side with the government. “
The Louisiana case addressed another problem: the legal position of abortion providers, who regularly lead challenges to state restrictions on the procedure. Roberts agreed with the four liberal court judges to find that the clinics had legitimacy, but his four conservative colleagues said they had denied their legitimacy, effectively invalidating the lawsuit and potentially dozens like this across the country.
The ongoing legal fight over Indiana’s abortion restrictions in 2016 gives the courts another chance to debate the pending issue.
The state restrictions went into effect briefly in 2016 before a federal judge stopped parts of the same month later. The U.S. 7th Circuit Court of Appeals upheld that decision in July 2018, prompting Indiana’s request for a Supreme Court review.
The judges spent an unusually long time deciding whether to adopt Indiana law. In May 2019, they issued a decision that addressed some elements of the law without first sustaining oral arguments. The court upheld the requirement that fetal remains of abortions be buried or cremated rather than discarded as medical waste, but blocked another provision that would have prohibited abortions based on the fetus’ gender, race, or disability.
Indiana argues that the contested policy is valid because it combines two types of abortion regulations that the court has separately allowed: a waiting period and an ultrasound requirement. Planned Parenthood and other law-defying groups say combining those requirements forces women to make two separate trips to an abortion provider, representing sometimes insurmountable hardship for rural and low-income patients.
The anti-abortion and religious groups that helped fuel the 2016 Trump campaign said this week’s Louisiana decision, while disappointing, underscored the importance of electing Trump for a second term so he can continue to remake the federal judiciary. Echoing that message, Vice President Mike Pence on Twitter said this week’s ruling made it clear: “We need more conservative judges on the United States Supreme Court.”
But anti-abortion groups said court decision 5-4 will be a motivating factor for progressive voters because it revealed the risk that abortion rights could be curtailed under the Trump presidency. More abortion-related lawsuits are coming to court, including challenges to a recent series of virtual bans that conservatives hope to trigger a direct challenge from the Supreme Court to Roe v. Wade.
