July 2, 2020

Chief Justice John Roberts with Justice Elena Kagan, Justice Neil Gorsuch and Justice Brett Kavanaugh before the start of President Trump’s State of the Union address in February.Pool photo by Leah Millis

By Alisha Haridasani Gupta

Gender Reporter

“Louisiana’s law cannot stand under our precedents.”

— Chief Justice John Roberts

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The Supreme Court on Monday struck down a Louisiana law that required doctors who perform abortions in the state to have admitting privileges at nearby hospitals.

This was the first major abortion case before the Supreme Court since President Trump added two new conservative justices to the bench — Justice Neil Gorsuch and Justice Brett Kavanaugh — and anti-abortion activists were hopeful that the court’s rightward tilt would help undo previous rulings on access, namely the ruling against an almost identical Texas law in 2016.

Back then, Chief Justice John Roberts dissented and sided with the anti-abortion wing. But in this instance, the chief justice joined the court’s liberal camp.

“The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” the chief justice wrote. “Therefore Louisiana’s law cannot stand under our precedents.”

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The ruling was hailed as a victory by abortion rights activists and it allows Louisiana’s three remaining abortion clinics to stay open.

But this case was one piece in the anti-abortion movement’s long-term, sustained effort to squeeze access to the procedure through a latticework of state laws.

Since 2011, several states have enacted over 200 different restrictions that limit when women can get an abortion, which procedures they can use or under what conditions (for example, rape), according to the Guttmacher Institute, which supports abortion rights.

And as of June, there were at least 16 abortion cases before United States appeals courts, the last step before the Supreme Court, according to lawyers at Planned Parenthood Federation of America. Many of these cases could present a more direct challenge to Roe v. Wade, the 1973 ruling that established federal protection for abortion, than the Louisiana and Texas laws.

I caught up with The Times’s Supreme Court reporter, Adam Liptak, about what this ruling means for the future of Roe v. Wade. The conversation has been edited and shortened for clarity.

Adam, were you surprised by this outcome?

I was somewhat surprised. There was good reason to think the court would uphold the Louisiana law restricting abortion in the state because we have two new justices appointed by President Trump since the last time the court addressed the issue in 2016. And because in 2016, Chief Justice John Roberts dissented from the ruling striking down the almost identical law in Texas. So those three votes you would have thought would have been on the anti-abortion side.

The departure in 2018 of Justice Anthony Kennedy, who was in the majority in the 2016 decision, also suggested that this was going to be a loss for supporters of abortion rights.

But there was a nuance in the ruling, right? Chief Justice Roberts said that the Texas case was “wrongly decided” but that he went with it anyway because of precedent — not because he’d exactly changed his mind about the facts. What does that mean down the line?

He said he was voting as he did because he was bound by the earlier precedent. That suggests that different kinds of abortion restrictions could well survive Supreme Court review. And there are lots of states using creative measures to try to restrict abortion.

On the other hand, in endorsing a high level of respect for precedent, it might suggest that the chief justice would be willing to uphold earlier decisions on the ultimate question of Roe v. Wade — the constitutional right to an abortion.

Given the precedent of Roe v. Wade and the chief justice’s emphasis on precedent, is abortion access really threatened? How high is the bar for the Supreme Court to overturn a constitutional right?

Judges and justices have complicated formulas about when it’s appropriate to overturn a precedent. They look at things like: Was it egregiously wrong when it was decided? Has it turned out to be workable in practice? Have people, in this case women, come to rely on it?

You’ll find different judges giving different answers to those questions.

Respect for precedent is governed by a complicated web of principles that different people can apply in different ways.

There’s another case concerning contraception that will be decided in the coming days. Tell me about it.

This is the latest in an ongoing battle about regulations under the Affordable Care Act, which guaranteed free contraception coverage to most women workers. It has always been complicated because the initial regulation set a carve-out for houses of worship, including churches, temples and mosques. Most other employers had to provide the coverage. And the Supreme Court, in a series of decisions, has allowed other exceptions and accommodations.

But when the Trump administration came in, it issued its own regulations, which allowed just about anybody — any employer with religious or moral objections to providing contraception coverage — to opt out. And the question before the court is whether those regulations are lawful.

An exterior view of the Hope Medical Group for Women in Shreveport, La. — one of just three remaining abortion clinics in the state.Liliana Engelbrecht/Reuters

And which way do you think the court will rule?

I suspect that just as the initial regulations were not in the Affordable Care Act statute itself but adopted by the Obama administration, a majority of the court is likely to say that the Trump administration is also entitled to adopt different regulations, at least for religious objectors.

In the hearing for the contraception case, were the justices stumbling over the definition of “moral”? Did you hear that come through?

Because of Covid-19, I listened to the hearing on the telephone — this was one of the court’s recent telephone arguments — and the justices did not really explore how courts are meant to decide what counts as a valid moral objection. But the lawyer challenging the new regulations certainly said the concept was vague and amorphous.

On the one hand, access to abortion has been protected, but access to contraception might be restricted. That paints quite a mixed picture.

Yes. As a general matter, what you say is right. But you could sort of harmonize the two decisions if they come out to be as we’ve sketched out. Women have to pay for abortions. The question in the contraception case is not whether you can have access to contraception but whether you must pay for it. And I don’t mean to minimize the burden that paying for contraception can be, but they’re not entirely on the same plane.

What does it say that the Supreme Court was even willing to take up these two cases together, especially the abortion case, so soon after the 2016 ruling?

It does seem weird that the Supreme Court should revisit an issue on the identical question after only a four-year gap with a change of personnel on the court — that looks pretty ugly. But in its defense, a federal appeals court had sustained the Louisiana law and seemingly thumbed its nose at the Supreme Court’s 2016 decision. So the court really had little choice but to take up the abortion case.

As far as the contraception case, a federal appeals court effectively struck down the Trump administration regulation, and when that happens, it’s not unusual for the Supreme Court to step in and say: If someone’s going to strike down a major executive action, it ought to be the Supreme Court.

What else is happening

Here are four articles from The Times you may have missed.

Taylor Callery

“In the Covid-19 economy, you’re allowed only a kid or a job.” A working mother, Deb Perelman, has come to the realization that parents are being crushed by an economy that has bafflingly declared working parents inessential. [Read the story]
“They were like partners in a business.” Ghislaine Maxwell, the former girlfriend and longtime associate of the disgraced financier Jeffrey Epstein, was arrested Thursday and charged with playing a key role in his alleged sex-trafficking operation. [Read the story]
“Mummy what’s his name?” When children made surprise cameo appearances on two live British news segments, one presenter engaged with the daughter of the global health policy expert who was being interviewed — the other interview, also with a working mother, was cut short. [Read the story]
“As a 9-year-old boy, I loved the Baby-Sitters Club books.” An editor at the Times Book Review, Gal Beckerman, revisits his obsession with the wildly popular children’s book series and recalls how the books primed him for appreciating literary fiction. [Read the story]

In Her Words is written by Alisha Haridasani Gupta and edited by Francesca Donner. Our art director is Catherine Gilmore-Barnes, and our photo editor is Sandra Stevenson.

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