WASHINGTON – A narrowly divided Supreme Court struck down state restrictions on abortion clinics Monday for the second time in four years, signaling that its conservative shift under President Donald Trump has not eliminated a deep split over abortion rights.
The court ruled 5-4 that a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals would unduly burden women. Chief Justice John Roberts joined the four liberal justices in the majority.
The court reached the same conclusion in 2016 regarding a Texas law, but since then Associate Justice Brett Kavanaugh had succeeded retired Associate Justice Anthony Kennedy, giving abortion opponents hope for even more substantial restrictions.
Associate Justice Stephen Breyer wrote the main opinion for the four liberal justices. He agreed with a federal trial court that found Louisiana’s law “poses a ‘substantial obstacle’ to women seeking an abortion” and “offers no significant health-related benefits.”
“The law consequently imposes an ‘undue burden’ on a woman’s constitutional right to choose to have an abortion,” he wrote.
Roberts made clear in a separate opinion that he dissented from the Texas ruling four years ago but that high court precedent must be followed.
“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” he wrote. “Therefore Louisiana’s law cannot stand under our precedents.”
The other four conservative justices each wrote separate dissents. The main one by Associate Justice Samuel Alito, which the others joined at least in part, said the dispute should have been returned to the trial court for additional findings.
Associate Justice Clarence Thomas wrote separately and denounced the court’s precedents.
“Those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text,” he said. “Our abortion precedents are grievously wrong and should be overruled.”
More abortion cases are headed the high court’s way as both sides in the passionate debate focus on the ultimate prize: upholding or overruling the 1973 Roe v. Wade decision legalizing abortion nationwide.
State laws threaten to extend a trend of abortion clinic closures that has slashed the number of independent clinics by one-third in the past eight years, from more than 500 to fewer than 350, according to the Abortion Care Network. Five states – Mississippi, Missouri, North Dakota, South Dakota and West Virginia – each are down to one clinic.
Louisiana, which leads the nation with 89 abortion restrictions passed since 1973, has three clinics left – one each in New Orleans, Baton Rouge and Shreveport. A federal district court judge who struck down the 2014 law found that it likely would force two out of business.
The law was resurrected by a federal appeals court panel, and the full appeals court refused to rehear the case. Judges appointed by Trump all voted with the majority.
In the Texas case, a shorthanded court following the death of Associate Justice Antonin Scalia, ruled 5-3 that requiring doctors to have hospital admitting privileges and clinics to meet surgical center standards imposed hardships on women without serving any medical purpose.
When the Texas law was enacted, only six of the state’s 44 abortion clinics met the new requirements. A court injunction allowed about 20 to remain open, but even after the high court victory, most of those that closed their doors never reopened.
In Louisiana, state legislators and government officials argued that the admitting privileges requirement would not have as great an impact. Still, the Supreme Court refused last year to let it take effect while legal challenges continued, with Roberts casting the deciding vote.
The state, backed by the Trump administration and scores of anti-abortion groups, contended the law is aimed at improving health and safety measures at abortion clinics. But groups such as Americans United for Life are open about wanting to overturn Roe v. Wade.
Abortion rights groups say hospital privileges are elusive for physicians who provide abortions and unnecessary when just 1 in 400 patients needs hospitalization. They also noted that most of the nearly 10,000 women seeking abortions in Louisiana annually are poor and unable to travel long distances for the overnight stays state regulations require.
It took almost 20 years after Roe v. Wade before the court reinforced both the right to abortion and states’ right to impose some restrictions in 1992’s Planned Parenthood v. Casey. From 2000 to 2007, the court struck down a state law banning late-term abortions, then upheld a similar federal law.
Last term, the justices upheld an Indiana law requiring the burial or cremation of fetal remains after an abortion. But they refused to consider that state’s effort to ban abortions based on sex, race or disability, as well as Alabama’s effort to ban a particular second-trimester method of abortion.