Pro-life leaders expressed deep disappointment with the U.S. Supreme Court’s refusal Monday (June 29) to uphold a Louisiana law designed to protect the lives and health of women by requiring hospital admitting privileges for doctors who perform abortions.
Pro-life advocates had been hopeful the Supreme Court’s willingness to rule on the Louisiana law signaled it was already prepared to revise the legal standard it used when it invalidated the Texas requirement four years ago.
Southern Baptist ethicist Russell Moore described the ruling as “disappointing and wrong-headed.”
“The Louisiana law was directed toward the simple goal of protecting women from danger by placing the most minimal restrictions possible on an abortion industry that insists on laissez-faire for itself and its profits,” said Moore, president of the Ethics & Religious Liberty Commission (ERLC). “Nonetheless, we will continue to seek an America where vulnerable persons, including unborn children and their mothers, are seen as precious, not disposable.”
The National Right to Life Committee is “extremely disappointed,” said its president, Carol Tobias. The decision “leaves women vulnerable,” she added.
Kristen Waggoner, general counsel for Alliance Defending Freedom, said women who want abortions “have the same right to competent and quality care as patients involved in other surgical procedures. Louisiana’s admitting privileges law protected that right.”
Abortion rights supporters welcomed the ruling.
Ilyse Hogue, president of NARAL Pro-choice America, called the decision “a win for women in Louisiana who will continue to have access to the time-sensitive abortion care they need.”
The ruling offered the latest setback to many evangelical Christians and conservatives who have sought the addition of originalist or strict constructionist justices to the Supreme Court. It followed by only two weeks a watershed, 6-3 decision in which the high court supported gay and transgender rights by ruling longstanding, non-discrimination protections in federal workplace law cover “sexual orientation” and “gender identity.”
In the June 29 decision, Chief Justice John Roberts provided the margin needed for the justices who voted to reverse an opinion by the Fifth Circuit Court of Appeals in New Orleans that upheld the law. Roberts did not sign onto the court’s decision by a four-person plurality, but he cast the deciding vote by filing an opinion that concurred in its judgment.
Roberts dissented from the high court ruling in Whole Woman’s Health v. Hellerstedt, the 2016 ruling that overturned the Texas admitting-privileges law. But he said in his concurring opinion on the Louisiana measure that the question “is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
The legal principle of precedents governing the court’s decision-making “requires us, absent special circumstances, to treat like cases alike,” Roberts wrote. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law. … Therefore Louisiana’s law cannot stand under our precedents.”
In the court’s opinion, Associate Justice Stephen Breyer described the measure under consideration as “almost word-for-word identical” to the Texas law and said it “would place substantial obstacles in the path of women seeking an abortion in Louisiana.”
While Louisiana argued the abortion providers who challenged the law did not have legal standing to bring the suit, Breyer said the state waived such an argument at the federal-court level.
Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer in the opinion.
Dissenting were Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Each filed a dissenting opinion.
In his dissent, Thomas said the abortion providers lacked legal standing. He also said the court’s previous abortion opinions on which the latest ruling was based “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”
The “undue burden” test relied upon in the court’s decision is a standard offered by the justices in their 1992 Planned Parenthood v. Casey opinion, which affirmed a legal right to abortion while allowing states to regulate aspects of abortion practice to protect the lives and health of women.
The ERLC, joined by the Lutheran Church-Missouri Synod, contended in a friend-of-the-court brief in support of the Louisiana law the “undue burden” test is the incorrect standard for laws that regulate abortion doctors. In place of the “undue burden” rule regarding health and safety requirements, the Supreme Court should use a standard from a 1997 opinion that calls for “ordinary rational basis review,” they said in the brief.
Since the decision in the Texas case, President Trump has nominated Gorsuch to replace the late Antonin Scalia, who died in 2016 before that ruling. When Associate Justice Anthony Kennedy retired in 2018, Trump nominated Kavanaugh. The U.S. Senate confirmed Gorsuch in April 2017 and Kavanaugh in October 2018.
Before the opinion, 11 states had some form of admitting privileges laws in effect, according to the Guttmacher Institute, formerly an affiliate of Planned Parenthood. Those states are Alabama, Arizona, Arkansas, Florida, Indiana, Mississippi, Missouri, North Dakota, Oklahoma, South Carolina and Texas.
The Louisiana measure — introduced by Democrat Rep. Katrina Jackson — gained passage with overwhelming, bipartisan majorities in both houses and was signed into law by Democratic Gov. John Bel Edwards.
The name of the case is June Medical Services v. Russo.
Tom Strode is Washington bureau chief for Baptist Press.