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Louisiana abortion law: How John Roberts left the door open to more state limits

CNN logo CNN 6/30/2020 By Caroline Kelly and Ariane de Vogue, CNN
John Roberts wearing a suit and tie: NEW YORK, NEW YORK - SEPTEMBER 24: Chief Justice of the United States John G. Roberts, Jr. speaks onstage during A Conversation With Chief Justice Of The United States John G. Roberts, Jr. at Temple Emanu-El on September 24, 2019 in New York City. (Photo by Cindy Ord/Getty Images for The Temple Emanu-El Streicker Center) © Cindy Ord/Getty Images for The Temple Emanu-El Streicker Center NEW YORK, NEW YORK - SEPTEMBER 24: Chief Justice of the United States John G. Roberts, Jr. speaks onstage during A Conversation With Chief Justice Of The United States John G. Roberts, Jr. at Temple Emanu-El on September 24, 2019 in New York City. (Photo by Cindy Ord/Getty Images for The Temple Emanu-El Streicker Center)

Chief Justice John Roberts provided on Monday the decisive vote to preserve access to abortion in Louisiana, a ringing victory for the clinics and doctors who spent years fighting a law they claimed would effectively ban the procedure in the state.

At the same time, however, Roberts left a key clue that could inspire other states to pass similar laws and guarantee that the issue of abortion remains front and center in national discourse decades after Roe v. Wade, the 1973 landmark Supreme Court legalizing abortion nationwide.

The court struck down a Louisiana law requiring that abortion providers obtain admitting privileges from a nearby hospital -- just like it struck down a similar law out of Texas four years ago.

Supporters of abortion rights were elated that access will remain available in Louisiana, and opponents of abortion were disappointed. But all agree that Roberts' language will have a major implications going forward.

"This was a huge victory for the Louisiana clinic, or at least a huge defeat averted, but the chief justice's opinion is a chilling sign for the future of abortion rights," said Supreme Court expert and Kaplan Hecker & Fink LLP partner Joshua Matz.

While Roberts sided with the court's four liberals to strike down the Louisiana law, in a concurring opinion the chief justice left open the possibility that other states might be able to pursue similar restrictions.

The "validity of admitting privileges law depend[s] on numerous factors that may differ from state to state," Roberts wrote in a footnote.

In Louisiana, for instance, those challenging the law asserted it could essentially end access to abortions in the state.

Matz pointed to salient lines in Roberts' opinion that walk back precedent on how courts should analyze the benefits and the burdens of a particular law.

Roberts wrote: "There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values."

Matz added, "Even if the law doesn't achieve any important purpose, and even if it causes real harm, the only question Roberts would ask is whether it creates a 'substantial obstacle' to exercising abortion rights."

Robert's opinion was "obviously concerning for us," said Julie Rikelman, an attorney with the Center for Reproductive Rights who argued against the law before the court.

"Roberts clearly did say that this law is unconstitutional, that it imposes an undue burden to abortion access in Louisiana," Rikelman stressed, before adding her concern.

"What the other parts of the opinion will mean will play out in the coming years," she said. "We think the opinion did muddy the waters a bit, and so will lead to more litigation rather than less."

Kathaleen Pittman, an administrator at Hope Medical Group for Women -- an abortion clinic in Shreveport, Louisiana, and plaintiff in the case -- also said the impact of Roberts' language would be felt another day.

Pittman described an air of "absolute giddiness" among clinic staff at the news while trying to stay contained enough to serve patients.

"The law struck down just now by the Supreme Court is just one of" the state laws passed of late to restrict abortion, she told reporters Monday. "This week, we're winning the battle, and that means we can stay open to fight another day. But as a provider, I'll tell you -- I'm celebrating today, but I'm still worried about our future."

James Bopp Jr., general counsel for the anti-abortion group National Right to Life, said that Roberts' ruling will "have to be sorted out by lower courts in the future."

"You can read it, you know, a half a dozen different ways," he said. "So it's like throwing out a bunch of confetti -- who knows what it means."

Abortion laws going forward

If lower courts interpret future cases in light of Roberts' opinion walking back the precedent, "that means a lot more regulations on abortion will be upheld," Bopp said. "Now if they think it's the majority decision that (applies)... then it will be harder."

The majority opinion was penned by liberal Justice Stephen Breyer.

On the ground, the chief justice's choice of analysis could have a variety of implications on both pending and future decisions on abortion cases, and even future restrictions that states look to advance.

While she didn't think that the decision would prompt the court to consider a so-called heartbeat ban, Rikelman called abortion restrictions like the Louisiana law "just as dangerous" as the state-level abortion bans.

The court doubling down on its opposition to the standard set by the Texas law was also significant given the slew of abortion rights cases in the pipeline to arrive at the high court, said Elizabeth Nash, the senior state issues manager at the Guttmacher Institute, a reproductive health think tank.

"When you see anything coming from the court that opens a door, then that is concerning," she said, noting that the perceived impacts of Roberts' decision would vary across sides of the abortion fight.

"If you want to protect abortion rights and access, this is a huge victory and really substantiates the need to use evidence in, you know, determining the constitutionality of restrictions," Nash added. Those opposing abortion rights, she added, can see this as a moment to "go back to the drawing board, you know, and see how to reevaluate your strategy."

'Roberts is completely written off'

Anti-abortion proponents seemed to view Roberts' opinion as evidence that he was against their cause -- but no true deterrent to continue pursuing such legislation.

"Roberts is completely written off," said Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List and national co-chair of the Trump Campaign's Pro-life Voices for Trump Coalition. She added that anti-abortion proponents would conduct "a close reading of their decision to see where the openings are" and were "pressing to make sure that we don't have another Roberts moment."

While she didn't see Roberts' opinion as amenable to such laws even when presented differently, "I'd be thrilled if that were the case," Dannenfelser said. "And there are legislators all over the country who will be saying, you know, 'make my day, we're still gonna do it anyway.'"

At the White House, press secretary Kayleigh McEnany blasted the ruling as "unfortunate," and took aim at the five justices in the majority.

"Instead of valuing fundamental democratic principles, unelected Justices have intruded on the sovereign prerogatives of state governments by imposing their own policy preference in favor of abortion to override legitimate abortion safety regulations," McEnany said in a statement.

Bopp slammed Roberts' professed support of court precedent as upholding the final decision of the Texas law, but not the analysis employed by the court at the time.

"He apparently thinks that politically, the best thing for the court, regardless of the law and the Constitution is that the court be viewed as implementing Roe v. Wade's most extreme positions," Bopp said. "And so that's what he did."

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