Roberts Faces Moment of Truth on Abortion Issue at Supreme Court

Greg Stohr

(Bloomberg) -- For U.S. Chief Justice John Roberts, the moment of truth on abortion is coming.

The Supreme Court on Wednesday will hear its first abortion case since Roberts became the pivotal vote on the issue. Four years after invalidating a Texas law requiring clinic doctors to have hospital admitting privileges, the court will consider whether to switch directions and uphold a similar law in Louisiana.

The argument will test Roberts’s appetite for rolling back abortion-rights precedents and could foreshadow a fight over the landmark 1973 Roe v. Wade ruling. The justices will rule by the end of June, potentially making abortion and the court itself central issues in the November election. President Donald Trump’s administration is supporting the Louisiana law.

Opponents say the law would leave the state with only one clinic, in New Orleans, and just one abortion doctor to serve the 10,000 women who seek to end a pregnancy every year in the state.

“Roe becomes meaningless if there is no access to abortion,” said Kathaleen Pittman, director of the Hope Medical Group for Women, a Shreveport clinic that says it would have to close if the measure took effect. “These women that we work with now do not have the means to travel, to fly out of state, to go to other places for their care.”

Conservative states have been moving to sharply restrict abortion rights in recent years. States enacted 58 new abortion restrictions alone, including a total ban by Alabama, according to the Guttmacher Institute, a research organization that backs reproductive rights. Many of those laws are on hold.

Supporters of the Louisiana measure, which carries criminal penalties, say the state is trying to protect women from unscrupulous and incompetent abortion providers. Among other arguments, they are urging the court to say that Hope and two unidentified doctors lack the legal right to challenge the law on behalf of their patients.

“We need to be listening to women, not to abortion businesses,” said Catherine Glenn Foster, president of Americans United for Life.

Pivotal Chief

Roberts -- now back at the court full-time after presiding over Trump’s impeachment trial -- dissented from the 2016 ruling that struck down the Texas rules and gave abortion-rights supporters reason to think the issue was resolved. The 5-3 decision said the state’s law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions.”

That was before the court’s composition changed with the addition of Trump appointees Neil Gorsuch and Brett Kavanaugh. The latter succeeded Justice Anthony Kennedy, who had been the court’s swing vote on abortion and voted with the majority to throw out the Texas law.

Those changes have left Roberts, a 2005 appointee of Republican President George W. Bush, squarely in the middle. Last year he joined the four Democratic-appointed justices to put the Louisiana law on hold while the court considered whether to intervene. Kavanaugh and Gorsuch both voted to let the law take effect, hinting they were at least open to upholding it.

Roberts’s vote might suggest he has questions about the federal appeals court ruling that upheld the Louisiana law. The 2-1 decision said the impact wasn’t as great as in Texas, and the majority blamed Louisiana doctors for not making good-faith efforts to get the required privileges.

But Roberts gave no explanation for his vote, and he may view the Louisiana law differently now that the court is directly considering it.

Possible Template

If he votes to throw out the Louisiana law, “it will be an indication that he wants to move slowly on abortion and does not want to expose the court to a lot of criticism, at least at this point,” said David Strauss, a constitutional law professor at the University of Chicago Law School who signed a brief urging the court to strike down the law.If Roberts votes to uphold the Louisiana statute, “that will suggest that he’s willing to be more aggressive, although a lot will depend on how the opinion is written,” Strauss.

Roberts steered the court toward restricting abortion rights in a 2007 ruling he could use as a template. That decision, issued during Roberts’s second term as chief justice, upheld a federal ban on a rarely used late-term abortion procedure that opponents called “partial-birth abortion.”

The decision, written by Kennedy, didn’t overturn a 2000 ruling that struck down a similar Nebraska ban. Instead, Kennedy said the federal statute was clearer in describing what procedures were outlawed and how doctors could ensure they wouldn’t be prosecuted.

Roberts is far more reluctant to overturn precedents than his conservative colleagues. He said in his 2005 Senate confirmation hearing that overruling a precedent is a “jolt to the legal system.”

In that testimony, he called the 1992 Planned Parenthood v. Casey abortion-rights ruling a “precedent of the court entitled to respect under principles of stare decisis,” the policy that the court generally won’t disturb its settled rulings.

Similar Laws

In the hospital-privileges case, abortion-rights advocates say the Texas and Louisiana rules are identical. Louisiana says there are enough differences that the court need not rule the same on both, but the state says the court should overturn the Texas ruling if necessary.

Louisiana’s law, enacted in 2014, requires doctors to have privileges at a hospital within 30 miles (48 kilometers) of the abortion facility. The measure was in effect for a brief period in 2016.

A ruling that upholds the Louisiana law without overturning the 2016 ruling would still be a boost for the anti-abortion cause, said James Bopp, an Indiana lawyer who filed a brief on behalf of the National Right to Life Committee and the Louisiana Right to Life Committee.

“It wouldn’t be as consequential,” Bopp said. “But any time you have a ruling on an abortion case, if the law’s upheld, there is value in that.”

The cases are June Medical Services v. Russo, 18-1323, and Russo v. June Medical Services, 18-1460.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo

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