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Editorial: The Supreme Court was right to throw out Louisiana’s oppressive abortion law

Abortion rights demonstrators and anti-abortion demonstrators rally outside the U.S. Supreme Court
Demonstrators rallied outside the Supreme Court on March 4 when the court heard a case against a Louisiana abortion case.
(Jose Luis Magana / Associated Press)

The Supreme Court struck down an onerous and unnecessary Louisiana restriction on abortion, offering a striking rebuke to the state for passing the same version of a law the high court ruled was unconstitutional four years ago.

In a 5-4 decision in June Medical Services L.L.C. vs. Russo, the court found that the Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals provided no health benefits to women and would drastically curtail access to the procedure, most likely leaving one clinic and one doctor in the state to provide abortions.

Justice Stephen G. Breyer, writing the principal opinion, made it clear in his opening sentence that the Louisiana law was “almost word-for-word identical” to the Texas law that the court struck down in the Whole Woman’s Health vs. Hellerstedt case four years ago.

As in the Texas case, the tribunal upheld a lower court’s finding that requiring hospital admitting privileges would make it impossible for many women and arduous for most others to obtain a safe, legal abortion in Louisiana — and would not make an already very safe procedure any safer. According to a comprehensive review of published studies, office-based abortion clinics reported a less than 0.5% risk of hospitalization after a first-trimester abortion, the most common type.

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However, there was plenty of evidence that getting admitting privileges can be difficult. Hospitals denied doctors privileges for reasons having nothing to do with their skills providing outpatient abortions. The court also found that the vetting for privileges added nothing to the vetting already conducted by the State Board of Medical Examiners.

The Supreme Court has, yet again, made clear that it rejects the pretext that these laws are intended to protect women’s health. Nothing could be farther from the truth. All these laws do — and the court has said this — is make it profoundly difficult to get an extremely safe and legal procedure. And that burden of difficulty falls hardest on those with the least means — poor women and women of color and those who live in rural areas.

You would think one ruling of the Supreme Court in 2016 would be enough to discourage abortion opponents from passing a law identical to the one the court threw out. But of course they were hoping that the court in 2020 with two new conservative justices would see the admitting privileges law differently. In fact, they did. Justices Neil M. Gorsuch and Brett M. Kavanaugh dissented from the majority.

The surprise (somewhat) was conservative Chief Justice John G. Roberts Jr. siding with the liberal justices even though he did not join their opinion. He made it clear, in his separate opinion, that he never supported the decision in the original Texas case, but that “the Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons.”

Roberts is no champion of abortion rights, but he is a stickler for precedent and he noted that Louisiana’s law could not stand given the Texas decision. And he did recognize the burdens that women face in states with restrictive abortion laws. (Louisiana’s are among the most restrictive.) And that was heartening at a time when abortion rights are still under attack.

Now that the Supreme Court has twice invalidated laws about admitting privileges, maybe abortion opponents will give up on this ruse.

But these rulings are unlikely to stop what Nancy Northup of the Center for Reproductive Rights, whose lawyers argued the Louisiana case, calls an “avalanche” of anti-abortion laws.

It’s appalling that nearly 50 years since the passage of Roe vs. Wade guaranteed a right to a safe, legal abortion — and after landmark Supreme Court cases in 1992 and 2016 reaffirmed that decision — women are still fighting to preserve their legal right to an abortion. The Women’s Health Protection Act would guarantee a right to abortion and bar the onerous restrictions various states have placed on providers and patients. But that faces an uphill climb in Congress. We expect the courts everywhere to stop these attempts in their tracks — and that is exactly what the Supreme Court did Tuesday.


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