Analysis: The Supreme Court has stopped anti-abortion momentum — for now
By Sabrina Tavernise and Elizabeth Dias
The New York Times|
Jun 29, 2020 at 5:22 PM
For anti-abortion activists, who have been working to restrict the procedure nationwide through a deluge of local laws, Monday’s Supreme Court ruling against a Louisiana law delivered a stinging and surprising setback.
It was the first major abortion case decided since President Donald Trump shifted the court’s balance of power to the right, nominating Justices Brett Kavanaugh and Neil Gorsuch to the bench. And the case represented the opportunity social conservatives have been fighting for, through their support for Trump and Kavanaugh: a chance to undermine past rulings favoring abortion access in America’s highest court.
That larger goal will have to wait — but perhaps not for long. The anti-abortion movement has a long pipeline of new cases that, if taken up by the Supreme Court, could present a more direct challenge to Roe v. Wade, the 1973 ruling that established federal protection for abortion. As of June, there were at least 16 abortion cases before U.S. appeals courts, the last step before the Supreme Court, according to lawyers at Planned Parenthood Federation of America.
The Louisiana case, over a 2014 law that required doctors performing abortions to have admitting privileges at nearby hospitals, was never envisioned as a way to upend Roe v. Wade. It was one small piece of a broader strategy to restrict abortion through a myriad of state laws that put together could chip away at overall access. That political project has already significantly narrowed abortion access in large swaths of the South and the Midwest. Five states each have only one abortion clinic left: Mississippi, Missouri, North Dakota, South Dakota and West Virginia.
The case also showed for the first time that Gorsuch and Kavanaugh backed the anti-abortion cause, as hoped by longtime activists. The ruling will only further the push by social conservatives to reelect Trump so they might have a third opportunity to nominate a justice, ensuring the court’s balance is fully in their favor, and in time to rule on more significant abortion cases working their way up to the Supreme Court. Many of those laws would have a far greater reach than the Louisiana case.
While legal challenges to abortion often take years to reach the Supreme Court, states have continued to add to the list, passing dozens of new laws in recent years. This month, Tennessee passed an abortion bill that would outlaw the procedure as early as six weeks in pregnancy without exceptions for rape or incest.
The president of the Susan B. Anthony List, an anti-abortion group, called Monday’s ruling a “bitter disappointment” but, looking ahead to the November elections, praised Trump for appointing Gorsuch and Kavanaugh, who dissented in the decision.
“It is imperative that we reelect President Trump and our pro-life majority in the U.S. Senate so we can further restore the judiciary, most especially the Supreme Court,” the group’s president, Marjorie Dannenfelser, said. “President Trump, assisted by the pro-life Senate majority, is keeping his promise to appoint constitutionalist Supreme Court justices and other federal judges.”
For the abortion-rights movement, which has faced a number of disappointments in recent years, the ruling was the best that advocates could have hoped for, given the new conservative tilt of the court. Monday’s decision allows the state’s three remaining abortion clinics will remain intact.
Abortion-rights advocates said the win would preserve access for a clientele that is disproportionately poor and of color. There were about 8,000 abortions performed in the state in 2018, according to state statistics. More than two-thirds of abortion patients in Louisiana are women of color.
“It’s crazy times, and it’s a wonderful good thing,” said Kathaleen Pittman, director of the Hope Medical Group for Women, the Shreveport-based clinic at the center of the case. On Monday morning, the clinic was seeing patients, and she described the mood after the ruling as “absolute giddiness.”
This November marks an important juncture for the fight over abortion. Trump’s bid for reelection will test the depth of his backing among white evangelicals and Catholics who support the president for how much he has advanced anti-abortion policies.
Control of state legislatures is also on the table. Nearly 80% of state seats are up for election this year, according to the National Conference of State Legislatures. Whichever party gets majority control will have tremendous power to reshape the legal landscape for abortion for years to come.
The anti-abortion movement has made tremendous gains in state legislatures around the country, which has allowed them to pass a flurry of bans in recent years. Reclaiming power on the state level for the abortion-rights movement will require painstaking grassroots work.
For conservatives, Monday’s ruling is a political opportunity to energize Trump’s conservative religious base at a moment when he trails Biden in six key states, including places like Michigan and Pennsylvania where white Catholics may be important swing voters. White House press secretary, Kayleigh McEnany, called the ruling “unfortunate.”
“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,” she said in a statement.
The abortion-rights movement had been using Trump’s appointments of Gorsuch and Kavanaugh as rallying calls for campaigns to take Senate seats, such as those held by Susan Collins, R-Maine, and Joni Ernst, R-Iowa. Monday’s ruling seemed to reinforce that strategy.
“This is great news, but the battle continues, folks,” said Ilyse Hogue, president of NARAL Pro-Choice America, an abortion rights group. “As long as Kavanaugh is on the bench, our rights are on the line — and we need your help to flip the Senate.”
Lawyers for the clinic argued their victory was resounding because it involved the Supreme Court ruling in their favor for the second time in four years on a case involving admitting privileges. The law was almost identical to a Texas law, large parts of which the Supreme Court struck down in 2016, and Justice Stephen Breyer said as much in his opinion. Even Chief Justice John Roberts, who sided against the abortion-rights groups in the 2016 case, gave his qualified support.
“Two strikes, you’re out,” said T.J. Tu, senior counsel at the Center for Reproductive Rights and a lawyer for the clinic. The message, he said, was that “states should really knock this off.”
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But in many ways the ruling was narrow — putting to rest merely one of many legal strategies used by the anti-abortion movement to reduce access. Legislatures, largely in red states, passed dozens of anti-abortion laws last year alone.
Nor it is a given that the 5-4 decision means that Roberts will always side with the court’s liberal wing on abortion cases. Though he was the deciding vote for Monday’s ruling, the chief justice specified in his concurring opinion that he believed the 2016 precedent that Monday’s ruling was based on was “wrongly decided.”
Lawyers for the Louisiana clinic conceded that Roberts had not come down conclusively on their side.
“The opinion did muddy the waters a little bit,” said Julie Rikelman, a lawyer at the Center for Reproductive Rights who represented the clinic. “It will lead to more litigation, not less.”
While the toughest bans — ones prohibiting abortion after a fetal heartbeat is detected — have drawn considerable attention, Rikelman said she did not expect those to be taken up by the Supreme Court. More likely, she said, would be any number of cases that diminish access piece by piece. For instance the next major case could be over bans on the dilation and evacuation procedure that is common in the second trimester of pregnancy or on abortion based on a Down syndrome diagnosis.