In another surprise decision—the third in two weeks—the Supreme Court ruled in a 5–4 vote on Monday to strike down a Louisiana law that would have severely restricted access to abortions for the women of that state.
The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. If allowed to stand, it would have effectively left the state with only a single clinic able to provide legal abortions. Supporters of the Louisiana law said it protected the health and safety of women seeking abortions and helped ensure doctors’ competence. Opponents said the law’s real purpose is to make it harder for women to get abortions.
Chief Justice John Roberts, increasingly a bellwether vote on the conservative-leaning court, joined the majority (which also included Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan). In his majority opinion, Breyer wrote that the Louisiana law “would place substantial obstacles in the path of women seeking an abortion” and that it “consequently imposes an ‘undue burden’ on a woman’s constitutional right to choose to have an abortion.”
The ruling followed unexpected ones earlier this month that guaranteed the rights of LGBTQ+ employees in the workplace and that blocked the Trump administration’s attempt to dismantle the DACA program, which protected young undocumented immigrants brought to the United States as children.
“This is a majority victory for abortion rights,” Neal Katyal, a former acting solicitor general, said on MSNBC Monday morning. Katyal adding that, taken in tandem with the LGBTQ+ and DACA rulings, it was becoming clear that “something very interesting is happening on this court.”
This decision was the first related to abortion since President Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh shifted the court to the right. Both Gorsuch and Kavanaugh voted with the minority.
In 2016, the court struck down a similar law, enacted in Texas, by a vote of 5 to 3, with Justice Anthony Kennedy, now retired, joining the court’s four-member liberal wing to form a majority. (The case was decided by an eight-member court after the death of Justice Antonin Scalia that February.) Since then, Trump had appointed Gorsuch to succeed Scalia and Kavanaugh to succeed Kennedy, significantly tilting the court to the right and raising hopes among conservatives that the court would soon begin to chip away at Roe v. Wade as well as abortion rights nationwide.
In Monday’s ruling, Roberts said he was bound by the precedent of that Texas decision, even though he was in dissent in that case. In his concurring opinion in the Louisiana decision, Roberts wrote, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons.”
Each of the four justices in the minority wrote their own dissents, with Justice Clarence Thomas writing, “Today a majority of the court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.” He added, “As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child.”