Scotus Judges' Abortion Law Vote: Louisiana's Landmark Decision

The Louisiana abortion law, which required doctors performing abortions to have hospital admitting privileges, was challenged in the Supreme Court in 2020. The law was similar to a Texas law that had been struck down by the Supreme Court in 2016. The 2016 ruling, which was decided by a 5-3 vote, stated that the Texas law made it harder for women to obtain abortions and did not protect the health of pregnant women. The Louisiana law was challenged by abortion providers who argued that it placed an undue burden on those seeking abortions and was therefore unconstitutional. The Supreme Court's decision to strike down the Louisiana law was made with a 5-3 majority, with Chief Justice John Roberts joining the four liberal justices.

The undue burden standard

In short, the undue burden standard states that a legislature cannot make a law that is too burdensome or restrictive of one's fundamental rights. This standard was applied in the case of City of Akron v. Akron Center for Reproductive Health, where Associate Justice Sandra Day O'Connor used the test as an alternative to the strict scrutiny test applied in Roe v. Wade.

The undue burden test has been used in various contexts, including tax laws, consumer product liability laws, affirmative action, voter registration laws, and anti-spam laws. It is considered a "middle way" between the strict scrutiny and the rational basis tests in Constitutional analysis.

However, the undue burden standard was overruled and made moot by the Supreme Court in 2022, in the case of Dobbs v. Jackson Women's Health Organization. The Court held that the term "undue burden" was ambiguous and unworkable, causing inconsistencies in its application across different courts.

The Whole Woman's Health v. Hellerstedt case

The Supreme Court ruled that these provisions placed a substantial obstacle in the path of women seeking an abortion and thus constituted an "undue burden" on abortion access, violating the Constitution. This decision reaffirmed a woman's constitutional right to access legal abortion and was a significant victory for abortion rights, empowering women to challenge deceptive anti-choice laws across the country.

The case was brought by the Center for Reproductive Rights on behalf of five Texas clinics and three physicians and their patients, who argued that the law's regulatory burdens would dramatically reduce access to safe abortion services without providing any benefit to patients. The law was found to be medically unnecessary, serving only to drive reputable, experienced reproductive health care providers out of practice.

The Supreme Court's ruling in Whole Woman's Health v. Hellerstedt was a decisive rejection of clinic shutdown laws and had a national impact, affecting states with similar laws that threatened to shutter abortion clinics. The decision was also a strong affirmation of abortion rights, with the Court finding that the Texas law did nothing to protect the health of pregnant women while making it harder for them to obtain abortions.

The Louisiana Unsafe Abortion Protection Act

The Supreme Court had previously struck down a similar law in Texas in 2016, which had been challenged on the same grounds. The Court had found that the Texas law did not promote the interest of protecting the health of pregnant women, but did make it more difficult for women to get an abortion.

In February 2019, the Supreme Court temporarily blocked the Louisiana law from taking effect, with Chief Justice John Roberts joining the court's four more liberal justices in voting to stay the 5th Circuit's ruling. In June 2020, the Supreme Court struck down the Louisiana law, with Chief Justice John Roberts again joining the court's liberal justices.

In his opinion, Justice Stephen Breyer concluded that the state had waived the argument that the abortion providers did not have a legal right to sue on behalf of their patients, as it hadn't been raised in the lower courts. He also noted that the law 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 the state.

Chief Justice John Roberts agreed with the result that Breyer reached, but not with his reasoning. Roberts maintained that he still believed the Texas case had been wrongly decided, but voted to strike down the Louisiana law due to the legal doctrine of stare decisis, which holds that courts should generally not overrule their prior precedents.

The impact on Black women

In 2014, Louisiana passed a law requiring abortion providers to have hospital admitting privileges. This law disproportionately affects Black women, who made up 62% of those seeking abortions.

The law will increase the distance that women need to travel to receive an abortion. If all Louisiana abortion facilities close, the average distance travelled will increase from 58 to 208 miles. This will particularly affect Black women, who are more likely to be from parishes with lower median incomes and higher poverty rates.

The law will also make it harder for doctors to perform abortions. This will delay abortions and make them more expensive. This will also disproportionately affect Black women, who are less likely to be able to afford these additional costs.

In addition, Louisiana has reclassified two common abortion pills, mifepristone and misoprostol, as "controlled substances". This will make it harder for doctors to prescribe these drugs and will increase the time between the drugs being prescribed and dispensed. This will put women's health at risk, particularly in the case of life-threatening postpartum haemorrhaging. Again, this will disproportionately affect Black women, who account for nearly two-thirds of all pregnancy-associated deaths in the state.

The role of Chief Justice John Roberts

Chief Justice John Roberts played a crucial role in the Supreme Court's consideration of the Louisiana abortion law, which required doctors performing abortions to have admitting privileges at nearby hospitals. As the Court's "new swing vote", Roberts' decision was seen as a key indicator of the direction the more conservative court would take under two new members appointed by President Trump.

Roberts had previously dissented in the 2016 case, *Whole Woman's Health v. Hellerstedt*, which struck down a similar Texas law. However, in the Louisiana case, Roberts joined the court's four liberal justices in a 5-4 vote to block the law's enforcement. This vote was a clear sign of Roberts' intention to guide the Court and prevent it from moving too far to the right, too quickly.

During an appearance at Belmont University, Roberts emphasised the Court's role in applying the law rather than engaging in politics. His vote in the Louisiana case was one of several instances where he held the decisive vote in 5-4 outcomes, demonstrating his pivotal role in the Court's decision-making.

Roberts' vote in the Louisiana case was not based on a change in his personal views but rather on procedural grounds and respect for precedent. He applied the legal principle of *stare decisis*, which requires the Court to defer to precedent, in this case, the recent *Whole Woman's Health* decision. While Roberts' concurrence prevented a brazen subversion of the rule of law, his conservative, anti-woman views remain intact, and he is not considered an ally to the liberal wing of the Court.

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