The Supreme Court is taking up the first major abortion case of the Trump era, an election year look at a Louisiana dispute that could reveal how willing the more conservative court is to roll back abortion rights.
The outcome could have huge consequences at a time when several states have passed laws, being challenged in the courts that would ban abortions after a fetal heartbeat is detected, as early as six weeks. The justices on Wednesday are examining a Louisiana law requiring doctors who perform abortions to have admitting privileges at a nearby hospital. A federal judge found that just one of Louisiana’s three abortion clinics would remain open if the law is allowed to take effect.
It is similar to one in Texas that the Supreme Court struck down in 2016. Since then, though, Donald Trump was elected president and he appointed two justices, Neil Gorsuch and Brett Kavanaugh, who have shifted the court to the right. Even with those two additions to the court, Chief Justice John Roberts almost certainly holds the deciding vote.
When the justices temporarily blocked the Louisiana law from taking effect a year ago, Roberts joined the court’s four liberal justices to put it on hold. Kavanaugh and Gorsuch were among the four conservatives who would have allowed the law to take effect.
Those preliminary votes do not bind the justices when they undertake a thorough review of an issue, but they often signal how a case will come out.
Roberts has generally voted to uphold abortion restrictions in more than 14 years as chief justice, including in the Texas case four years ago.
It is for now unclear whether Roberts’ outlook on the Louisiana case has been affected by his new role as the court’s swing justice since Justice Anthony Kennedy’s retirement, his concern about the court being perceived as a partisan institution and his respect for a prior decision of the court, even one he disagreed with.
The chief justice asked an intriguing question about precedent Tuesday, wondering whether a 10-year-old decision would help determine the outcome of a case about the Consumer Financial Protection Bureau. “Do you think that recent precedent should have a binding effect on how the Court addresses this case?” Roberts asked.
Louisiana, the Trump administration and anti-abortion groups have all firmly answered that question with a resounding, “No.”
Louisiana Attorney General Jeff Landry said the Louisiana and Texas laws are not identical. “Louisiana abortion providers have a record of non-compliance with basic safety regulations, and now they want a special exemption from generally accepted medical standards that apply to similar surgical procedures in our state,” Landry said.
The Trump administration also argued in court papers that the high court could overrule the Texas case if necessary.
Julie Rikelman, the Center for Reproductive Rights lawyer who will argue the case on behalf of a clinic in Shreveport, Louisiana, said a trial judge found that abortions in Louisiana are safe and that the law provided no health benefits to women. “This is a law that restricts a constitutional right for no good reason,” Rikelman said.
The court also has agreed to review whether abortion providers have the right to go into court to represent the interests of women seeking abortions. A ruling in favor of the state’s argument that the providers lack the right to sue in these circumstances, known as third-party standing, would be a devastating blow to abortion rights advocates since doctors and clinics, not individual women who want abortions, file most challenges to abortion restrictions. A decision is expected by late June.