WASHINGTON — The Supreme Court on Monday found an abortion restriction in Louisiana to be unconstitutional in a ruling that could further damage President Trump’s standing with conservatives.
Chief Justice John Roberts cast the decisive vote to repeal a Louisiana law that would have restricted access to abortion clinics by requiring doctors who perform the procedure to have admitting privileges at local hospitals.
Roberts was the fifth vote in a 5-4 decision, joining the liberal justices in the majority decision in Juno Medical Services v. Russo.
Conservatives had hoped that Roberts would agree to uphold the Louisiana provision. Such a ruling would have been seen as a signal that the Supreme Court was ready to strike down Roe v. Wade, the landmark ruling that legalized abortion nationwide in 1973.
Instead, Roberts said that because the Supreme Court had struck down a similar law in Texas four years ago, in Whole Woman’s Health v. Hellerstedt, the court should stand by that precedent. The majority opinion referred to the Texas statute as “almost word-for-word identical” with the Louisiana law.
In the 2016 election, Trump was able to mobilize conservative voters in large part because of his promise to appoint right-leaning Supreme Court justices. He has followed through on that promise, appointing Neil Gorsuch and Brett Kavanaugh to the court, and sticking with the latter through a bruising confirmation process.
But conservative hopes that the high court would decisively swing to the right have not materialized, in large part because Roberts has embraced the swing-voting role previously held by Justice Anthony Kennedy, who retired in 2018. Sensing a threat to his standing with conservatives after recent defeats, Trump promised earlier this month that he would release a new list of potential Supreme Court picks in September.
Monday’s ruling may bolster Trump’s conservative critics, who argue that he is not worth supporting despite the fact that he has appointed conservatives to the federal bench at a historic rate. These critics argue that while Trump may deliver the occasional conservative victory, his character is so flawed and his presidency is so unpopular that the wins are likely ephemeral.
This latest judicial setback comes as Trump’s polling has hit new lows: He is now trailing presumptive Democratic nominee Joe Biden by 9 points in the Real Clear Politics average. The White House blasted Monday’s decision, with press secretary Kayleigh McEnany saying the justices had “intruded on the sovereign prerogatives of State governments by imposing their own policy preference in favor of abortion to override legitimate abortion safety regulations.”
Conservatives were likewise outraged that Roberts, who sided with conservatives in the Texas case four years ago, defected to the liberal wing of the court this time around.
“Unreal,” tweeted Ryan Anderson, a research fellow at the Heritage Foundation and founder and editor of the online journal Public Discourse. “If he thought the Court got it wrong four years ago, today was his chance to correct it.”
And while Trump did not appoint Roberts to the court, the Louisiana ruling comes just two weeks after one of Trump’s two appointees, Gorsuch, ruled that federal law prohibits employment discrimination against LGBT people. Conservatives had argued that the decision to expand workplace protections for LGBT people would imperil religious liberty.
Roberts was appointed to the court in 2005 by President George W. Bush. Some conservatives on Monday aimed their criticism at Bush, but there was no doubt that the pair of defeats at the court was dispiriting to the right. Conservatives have spent decades trying to overturn Roe v. Wade, a goal that seems much further out of reach after Monday’s ruling.
“Today’s ruling is a bitter disappointment,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion group.
Dannenfelser argued that the ruling provided evidence for why conservatives should reelect Trump.
“Today’s ruling reinforces just how important Supreme Court judges are to advancing the pro-life cause. It is imperative that we reelect President Trump and our pro-life majority in the U.S. Senate so we can further restore the judiciary, most especially the Supreme Court,” she said.
But the Gorsuch vote on the discrimination case, combined with Monday’s Roberts ruling on the abortion law, may undermine the argument that Trump has successfully tilted the judiciary to the right.
“The judiciary has in fact been remade — at least to a degree — but America’s judicial transformation has perhaps affected abortion rights less than any other contentious area of American constitutional law,” David French, a prominent conservative opponent of Trump’s, wrote in March after oral arguments in Juno Medical.
“Put another way, the most activist energy has yielded the least constitutional impact.”
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