Opinion analysis: With Roberts providing the fifth vote, court strikes down Louisiana abortion law (Updated)

Four years ago, by a vote of 5-3, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions to have the right to admit patients at a nearby hospital. In that case, Justice Anthony Kennedy joined his four more liberal colleagues in holding that, although Texas has a genuine interest in protecting the health of pregnant women, there was no evidence that the law actually did anything to promote that interest – but it did make it more difficult for women to get an abortion. Kennedy is no longer on the court, but today it was Chief Justice John Roberts who joined the court’s four liberals in ruling in June Medical Services v. Russo that a similar law from Louisiana is unconstitutional – even as he maintained that he continues to believe that the Texas case was wrongly decided.

The law at the center of today’s decision is the Louisiana Unsafe Abortion Protection Act, enacted in 2014, which requires doctors who perform abortions in Louisiana to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. After the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt striking down the similar Texas law, a federal court in Louisiana barred the state from implementing the admitting-privileges requirement. It ruled that the law was unconstitutional because it would impose an “undue burden” on a woman’s right to an abortion. Specifically, the district court concluded, if the law went into effect, there would be only one doctor in the entire state left performing abortions in the early stages of pregnancy, and none at all performing abortions between 17 and 21 weeks of pregnancy. The U.S. Court of Appeals for the 5th Circuit reversed that ruling, clearing the way for the state to enforce the admitting-privileges requirement.

The challengers in today’s case – an abortion clinic and two doctors who perform abortions – asked the Supreme Court to intervene and block the state from putting the law into effect until they could file a petition for review of the 5th Circuit’s decision. In February 2019, Roberts provided the crucial fifth vote to put the law on hold. The justices agreed to weigh in on the dispute last October and heard oral argument in early March.

In an opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer – who also wrote the court’s opinion in Whole Woman’s Health – began by considering a threshold question in the case: the state’s argument that the abortion providers did not have a legal right to sue on behalf of their patients, known as standing, to challenge health-and-safety regulations like the admitting-privileges requirement. Breyer concluded that the state had waived the argument because it hadn’t raised it in the lower courts; in fact, Breyer stressed, the state had made the contrary argument, telling the district court that there was “no question that the physicians had standing” to challenge the law. It was only when the challengers filed their petition for review of the 5th Circuit’s decision upholding the law that the state filed its own cross-petition arguing that the challengers lacked standing, Breyer observed. But in any event, Breyer added, the Supreme Court has “long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” Moreover, the court has allowed plaintiffs to bring lawsuits when the enforcement against the plaintiffs of the restriction being challenged would indirectly violate the rights of others.

Moving to the merits, Breyer portrayed the answer to the central question before the court as flowing almost directly from the ruling in the Texas case. The Louisiana admitting-privileges requirement, Breyer explained, “is almost word-for-word identical to Texas’ admitting-privileges law.” Just as in the Texas case, Breyer continued, the district court in Louisiana concluded that enforcing the admitting-privileges requirement would “result in a drastic reduction” in the number of abortion providers in Louisiana and place “substantial obstacles in the path of women seeking an abortion in Louisiana.”

The district court, Breyer noted, had “supervised” four doctors for more than 18 months as “they tried, and largely failed” to obtain admitting privileges at 13 hospitals. The district court heard evidence that some of those applications were rejected for reasons unrelated to the doctors’ ability to perform abortions safely. For example, doctors who perform abortions often cannot meet minimum requirements for admitting privileges, which may call for recent in-hospital experience, because “hospital admissions for abortion are vanishingly rare,” while some hospitals deny admitting privileges to doctors who perform abortions.

If the admitting-privileges requirement were enforced, Breyer concluded, three physicians would no longer be able to perform abortions, while a fourth testified that he too would stop because he would then be the only abortion provider remaining in the northern part of the state. Because the remaining doctor was unable to obtain privileges in the Baton Rouge area, Breyer wrote, Louisiana would be left “with just one clinic with one provider to serve the 10,000 women annually who seek abortions in the State.” That doctor, practicing in New Orleans, could meet “no more than about 30% of the annual demand for abortions in Louisiana,” and only for women in the early stages of pregnancy. Moreover, Breyer added, women in other parts of the state would have to travel to New Orleans for counseling and an ultrasound at least 24 hours before obtaining an abortion – which would mean either multiple trips or an overnight stay.

Not only did the district court determine that the admitting-privileges requirement would burden women’s access to abortion, Breyer wrote, but it also found that the requirement provided no real health benefits for women seeking abortions. Breyer reiterated that “hospitals can, and do, deny admitting privileges for reasons unrelated to a doctor’s ability safely to perform abortions.” Moreover, there is no evidence to suggest that any vetting that a hospital does in deciding whether to grant admitting privileges “adds significantly to the vetting that the State Board of Medical Examiners already provides.” More broadly, the state did not provide any evidence indicating that patients experience better outcomes when their doctors have admitting privileges; indeed, Breyer noted, the state could not point to even one example in which a woman would have had better treatment if her doctor had had admitting privileges. The 5th Circuit reversed, Breyer noted, because it believed that the district court “was mistaken on the facts.” Breyer disagreed. The “extensive record” in the case, Breyer concluded, “supports the District Court’s findings of fact,” which “mirror those made in Whole Woman’s Health in every relevant respect” and therefore lead to the same result: Louisiana’s admitting-privilege requirement is unconstitutional.

With only three other justices joining his opinion, Breyer needed one more vote to reverse the 5th Circuit’s decision upholding the admitting-privileges requirement. That vote came from Roberts, who agreed with the result that Breyer reached – striking down the requirement – but not with Breyer’s reasoning. Roberts emphasized that he had disagreed with the majority’s decision to strike down the Texas admitting-privileges requirement in 2016 and still believed today that the Texas “case was wrongly decided.” Despite that conviction, Roberts nonetheless agreed with Breyer that the Louisiana law “cannot stand” because of a legal doctrine known as stare decisis – the idea that courts should generally not overrule their prior precedents. That doctrine, Roberts explained, “requires us, absent special circumstances, to treat like cases alike.” Because the Louisiana admitting-privileges requirement “imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” Roberts concluded, it too must fall.

Roberts devoted a sizeable portion of his 16-page opinion to a discussion of the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, in which the court held that a state cannot “impose an undue burden on the woman’s ability to obtain an abortion.” Roberts pushed back against the suggestion (made in Whole Woman’s Health and again by Breyer today) that the undue burden standard requires courts to weigh the alleged benefits of a law “against the burdens it imposes on abortion access.” Although this discussion was largely theoretical, because Roberts agreed with Breyer and the other liberal justices that the Louisiana law cannot stand, it’s an important point that could come into play in future challenges to laws regulating abortion.

Read in isolation from Casey, Roberts argued, an inquiry into the asserted benefits of a law could invite a “grand balancing test” that could lead to arbitrary results. In the context of abortion, it could require courts to weigh the state’s interest in protecting potential human life and the health of the pregnant woman against the woman’s right to choose – a nearly impossible task, according to Roberts. “Pretending that we could pull that off would require us to act as legislators, not judges.” “Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts,” Roberts observed. Rather, Roberts continued, legislatures generally have “wide discretion” to legislate “in areas where there is medical and scientific uncertainty.” To the extent that Casey addressed the benefits of a law, it did so in the context of “the threshold requirement that the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that goal.’” If the state can make that showing, Roberts concluded, then the only question is whether the law places a substantial obstacle in the path of a woman seeking an abortion; the benefits are not balanced against the law’s burdens.

“In this case,” Roberts continued, “Casey’s requirement of finding a substantial obstacle before invalidating an abortion regulation is therefore” enough to strike down the Louisiana admitting-privileges requirement, just as it was in the Texas case four years ago, without any need to consider the benefits of those laws.

Justice Clarence Thomas filed a dissenting opinion in which he complained (as he had in the Texas case) that abortion providers lack a legal right to sue – known as standing – on behalf of their patients. But more broadly, Thomas argued, the court’s prior decisions on abortion “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” Those precedents, Thomas contended, “are grievously wrong and should be overruled.”

Justice Samuel Alito filed a dissenting opinion that was joined by Justice Neil Gorsuch and joined in part by Thomas and Justice Brett Kavanaugh. He would send the case back to the lower courts for the challengers to add a plaintiff who (in his view) has a right to sue and for a new trial, at which the district court could determine whether enforcement of the admitting-privileges requirement would actually reduce the number of doctors performing abortions to a level at which “women’s access to abortions would be substantially impaired.” Alito also seemed to cast doubt on whether the abortion providers in this case had truly tried to obtain privileges; he suggested that the district court should require the plaintiffs to show that these doctors had made a real effort to do so.

Gorsuch also filed a separate dissent in which he contended that Roe v. Wade – the court’s 1973 decision recognizing a constitutional right to an abortion – “is not even at issue here.” “The real question” before the court, he argued, “concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.” Gorsuch chronicled the ways in which he believed that Breyer’s opinion fell short on this front, ranging from Breyer’s analysis of standing to his application of the standard that courts apply to challenges, like this one, that seek to invalidate a law in its entirety. “To arrive at today’s result,” Gorsuch concluded, “rules must be brushed aside and shortcuts taken.”

Kavanaugh filed his own separate but brief dissent in which he argued that “additional factfinding is necessary to properly evaluate Louisiana’s law.” As he had last year in an opinion dissenting from the order that blocked the state from enforcing the law, he maintained that the facts in the case are incomplete. In particular, he noted, the record does not show that three doctors have not been able to obtain admitting privileges, so that three clinics would close as a result of the law.

Today was clearly a victory for the challengers, and Roberts’ concurring opinion signals that efforts to pass similar admitting-privileges requirements in other states may not pass constitutional muster. But the decision was also in many ways a narrow ruling, resting on Roberts’ adherence to the court’s 2016 decision in the Texas case. With four justices very vocal in their opposition to today’s ruling and a number of challenges to other laws regulating abortion in the pipeline, the legal battle over abortion seems likely to continue into the foreseeable future.