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If the Supreme Court Doesn’t Stay a Louisiana Law Next Week, Roe v. Wade Will Be All but Dead

Slate logo Slate 1/31/2019 Mark Joseph Stern
John Roberts wearing a suit and tie smiling at the camera: Supreme Court Chief Justice John Roberts Alex Wong/Getty Images © Provided by The Slate Group LLC Supreme Court Chief Justice John Roberts Alex Wong/Getty Images

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

Within one week, the Supreme Court will decide whether to block a Louisiana law designed to shutter the state’s abortion clinics through draconian regulations. If the court refuses to halt the law’s implementation, it will effectively overrule its 2016 decision in Whole Woman’s Health v. Hellerstedt. By doing so, the new conservative majority would set in motion the imminent reversal of Roe v. Wade itself. It is no overstatement to say that the Supreme Court will determine the future of Roe in a matter of days.

The Louisiana law at issue, Act 620, was modeled after the Texas statute that the court struck down in Whole Woman’s Health. Like that measure, Act 620 requires abortion providers to obtain admitting privileges at a hospital within 30 miles of their clinic. As one judge on the 5th U.S. Circuit Court of Appeals wrote, the Texas and Louisiana laws are “almost identical.” And because the Supreme Court invalidated the Texas statute as an “undue burden” on the constitutional right to abortion access, you might expect the 5th Circuit to strike down the Louisiana measure on the same grounds.

It did not, for one very obvious reason: By the time the 5th Circuit heard a constitutional challenge to Act 620, Justice Anthony Kennedy—who cast the fifth vote to strike down the Texas statute—had retired. He was poised to be replaced by Brett Kavanaugh, a hard-line abortion opponent eager to overturn Roe. And so, in clear anticipation of a shift away from abortion rights, a panel of judges for the 5th Circuit upheld the Louisiana law in June Medical Services v. Gee. The full 5th Circuit then declined to reverse the panel’s decision, with Trump’s four appointees voting to let the ruling stand. (Trump’s fifth appointee to the court, Kyle Duncan, recused himself because he helped defend Act 620 before joining the bench.)

In two scathing dissents, Judges James L. Dennis and Stephen A. Higginson accused the 5th Circuit of essentially overturning Whole Woman’s Health on its own. They were right. In Whole Woman’s Health, the Supreme Court explained that an abortion restriction runs afoul of the Constitution if its burdens on women outweigh its benefits. Texas’ admitting privileges requirement, the court found, heavily burdened the state’s clinics while providing no real benefit to women, rendering it unlawful. Because Act 620 imposed the same requirement, the 5th Circuit was obligated to conclude that it, too, unduly burdened women’s access to abortion in violation of the U.S. Constitution.

It did not. In his June Medical Services opinion, Judge Jerry Smith acknowledged that Act 620 bestows, at most, “minimal benefits” to women. But he concluded that it is still constitutional because it creates only minor burdens. How minor? Smith estimated that the law will close only one of Louisiana’s three remaining abortion clinics, whereas the Texas law would’ve closed about 32 out of 40 of that state’s clinics. As a result, he calculated, Louisiana women will have to wait about an hour longer to obtain an abortion. These burdens, Smith wrote, were too slight to infringe upon the Constitution.

This analysis, as Dennis and Higginson explained, is just plain wrong. In determining whether the Texas law survived constitutional scrutiny, the Supreme Court did not tally total clinic closures and wait times. It weighed the burdens of the law against the benefits and found that the stringent regulations did nothing to improve women’s health. Smith himself admitted that Act 620 stood to close one-third of Louisiana’s abortion clinics, would compel women to travel farther to remaining providers, would strip some doctors of their ability to perform the procedure, and would increase wait times. He even conceded that the law would barely benefit women. (In fact, the law provides no identifiable benefits to women’s health.) That should’ve been the end of his analysis. But Smith upheld the law anyway, engaging in a numbers game that directly contradicts Whole Woman’s Health.

On Monday, challengers to Act 620 asked the Supreme Court to stay the law while they appeal the 5th Circuit’s June Medical Services decision. If the court accepts their request, the Louisiana law would be blocked until further notice—that is, it would be on hold until SCOTUS either refuses to hear the case or takes it and issues a decision. If the Supreme Court denies their request to stay Act 620, the law will take effect on Monday. (The justices could still hear the case next year and, theoretically, strike down Act 620 at that later date. By that point, however, it may be too late for Louisiana’s clinics to recover, though other states would learn that they cannot yet disregard Roe.)

The challengers allege that Smith vastly underestimated the law’s impact, asserting that it will actually close all but one Louisiana clinic and strip all but one doctor in the state of the ability to perform abortions. They appear to be correct. The district court found that only a single doctor has admitting privileges in a single clinic, and the rest of the state’s abortion providers tried and failed to obtain them. Smith rejected that finding and insisted that these doctors “sat on their hands” and could probably get admitting privileges if they tried harder. That speculation is totally unsupported by the factual record. If the court does not put the law on hold, then, it appears that Roe will be close to dead-letter in Louisiana.

But the consequences of a 5–4 decision permitting Act 620 to take effect would extend far beyond one state. It would indicate that the Supreme Court’s new majority has retreated from Whole Woman’s Health, signaling that states are free to ignore it and pass stringent laws targeting abortion clinics. Once Whole Woman’s Health is functionally overturned, Roe itself will be next on the chopping block. After all, Whole Woman’s Health really just re-affirmed the fundamental principle that states may not devise pretextual excuses to deny women control over their reproductive rights. Once that rule is scrapped, states will be unleashed to regulate abortion out of existence within their borders.

June Medical Services puts immense pressure on Chief Justice John Roberts, the court’s new swing vote. Roberts was a dissenter in Whole Woman’s Health and very likely wants to overturn Roe. But will he be willing to let a lower court brazenly defy precedent, even if it’s a precedent he dislikes? His vote on this emergency appeal will reveal how aggressively the chief justice wants to attack abortion access—and whether he’s willing to sacrifice the rule of law to nullify Roe as fast as possible. If Roberts lets Act 620 take effect next week, it will be the beginning of the end of the constitutional right to choose.

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