The Supreme Court Will Not Deliver Justice on Abortion Rights (Jacobin)
by Jenny Brown
This article originally appeared in Jacobin.
The Supreme Court’s abortion rights decision yesterday provides a brief respite to women across the South. But we’re still playing defense in the courts. Our offensive should be in the streets.
Yesterday’s ruling provides some relief for women across the South. A lower court had blocked the law, finding that if the rule had gone into effect, Louisiana would have been left with one clinic and one doctor to meet a demand of around ten thousand abortions a year. (The decision was reversed on appeal.)
Since the Louisiana law is identical to a Texas statute the court halted four years ago, court-watchers wondered what Chief Justice John Roberts would do. In 2016, he approved the restrictions that Texas had imposed in Whole Woman’s Health vs. Hellerstedt. But on Monday, Roberts sided with the three women on the court — Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor — and with Stephen Breyer, who wrote the decision.
Roberts’s reasoning, in a separate concurrence, was based on deference to stare decisis, “the legal term for fidelity to precedent.” Given that a month of unprecedented demonstrations have charged cops and courts with generating injustice and tyranny, the supremes are no doubt shifting uneasily on their bench. Recent decisions favoring the DACA program for young immigrants, anti-discrimination protections for LGBT people, and now this abortion case, may reflect Roberts’s desire to maintain some legitimacy for the court.
But the chief justice spends much of his concurrence arguing that legislatures can do whatever they want for whatever reasons they wish, unless it constitutes a “substantial obstacle” to abortion. Quoting the Supreme Court’s 1992 Casey decision, Roberts writes: “The State’s freedom to enact such rules is ‘consistent with Roe’s central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn.’”
Also at issue in June v. Russo was whether abortion clinics and doctors could go to court on behalf of their patients’ constitutional right to abortion. Looked at from a commonsense perspective, these laws attack clinics to deprive women of abortions, so that the interests of the clinics and their patients coincide. But the issue was never fully addressed, as Louisiana’s lawyers had agreed earlier in the process that the clinic had standing and, therefore, Breyer argued, couldn’t introduce their challenge at the Supreme Court. This leaves the issue open to future challenges.
Admitting privileges are a ruse Texas and Louisiana have used to drive out abortion doctors and prevent them from providing care at more than one clinic. As testimony before the district court made clear, the problem for abortion providers is that their outcomes are too good — they almost never have patients who need to go to the hospital. Most hospitals only give such privileges to doctors who drum up hospitals’ business by admitting at least fifty patients a year. But doctors who perform abortions typically don’t have any patients who require hospitalization.
Monday’s ruling should not be taken as a sign that attacks on abortion will slow down. Roberts’s opinion and Samuel Alito’s dissent continue a successful path of eroding abortion rights rather than dramatically overturning Roe v. Wade. (Trump appointee Brett Kavanaugh, despite promising to respect precedent during his weepy confirmation hearing, took the anti-abortion side, to no one’s surprise.)
We should expect states trying to further restrict abortion to fashion their arguments to meet Roberts’s concerns. He’s given them a road map. Under the “significant obstacle” test and its predecessors, the court has okayed prohibitions on federal funding, parental consent for minors, waiting periods, forced ultrasounds, a ban on one abortion procedure (D&X), scaremongering scripts, and various laws making it harder for abortion providers to operate. Next among the likely restrictions to be considered are bans after twenty weeks, and bans on a second-trimester abortion procedure known as D&E.
And states continue to pass new laws. In a closed midnight session on June 18, the Tennessee legislature approved a so-called “heartbeat bill” that would ban abortion as early as six weeks. Two feminist leaders who heard about it and tried to attend were arrested and hauled out of the chamber by police. They responded with a two-hundred-car caravan around Governor Bill Lee’s house.