Returning to an abortion rights issue that it had decided earlier but with a bench that is now changed, the Supreme Court agreed on Friday to hear new appeals on states’ power to limit the activities of doctors who terminate women’s pregnancies. The case has the potential to bring about a major shift in the scope of abortion rights, but how far the coming ruling may actually go is not clear at the outset.
Although the issue of the Court’s view of the basic constitutional right to abortion first recognized 46 years ago is not directly being contested in the two new cases, the Court always has the option of reconsidering a constitutional declaration.
Short of that, it has several the options to follow in reaching a final decision sometime next year, probably late in the Court term that formally opens on Monday. When it rules, that would mark the first time the two Justices who most recently joined the Court – Neil M. Gorsuch and Brett M. Kavanaugh – had taken part in a final ruling by the Court on the constitutional right to abortion.
These appear to be the Court’s main options:
* It could either uphold or strike down a 2013 Louisiana law (patterned after a Texas law that the divided Court had struck down three years ago), requiring doctors who perform abortions at clinics in the state to have the professional privilege to send patients to a hospital located no more than 30 miles from the clinic. (In 2016, the Court ruled by a 5-3 vote that such a law provides no health benefit to women and unconstitutionally restricted women’s access to abortion.)
* It could (a) rule on the basis of the constitutional standard it has been applying since 1992 on when a law regulating abortions interferes too greatly with a woman’s right to end her pregnancy (a standard that often has favored that right), or it could (b) adopt a new standard that would permit greater state power to limit access to abortions.
* It might not rule at all on the validity of the Louisiana law, but rule instead – as the state of Louisiana has asked it to do – that doctors and clinics no longer have a legal right to sue to challenge restrictions on abortions for their women patients. Such a decision would mean that only women themselves could sue to protect their right. (That is an outcome that one of the Justices, Clarence Thomas, has said he favors; he has argued that the Court has stretched too far the constitutional right to sue in federal court to challenge restrictions on abortions.)
* Or it might rule that the Court’s review of the Louisiana’s law is premature, because it may not be clear as a factual matter that the law would actually work, in practice, to limit doctors’ opportunity to perform abortions at the three clinics that remain in the state. (The Court’s newest member, Justice Kavanaugh, made exactly that argument last February, but he and three other Justices were outvoted when a five-Justice majority temporarily blocked Louisiana from enforcing the law.) That argument is still open for him, or others, to make as the case proceeds, and could mean – if it drew majority support – that challengers to new restrictions would have to meet stricter standards on a law’s actual effects.
The broadest of those options are present because, first, they always linger in any abortion case because that constitutional question seems never to be finally settled, and, second, because the two new conservative Justices could be available to help form a new majority to restrict abortion rights.
Some of the other options arise, though, because the Court decided on Friday not only to hear a constitutional challenge to the Louisiana law, in an appeal by abortion providers, but also to hear a separate appeal by the state of Louisiana.
The state asked the Court to cut back on who may sue to challenge such laws, picking up on the idea promoted publicly by Justice Thomas. That puts the right-to-sue issue directly at stake.
And, because Justice Kavanaugh or others could pursue the claim that the facts still need to be sorted out on the actual impact of the Louisiana law, a return of the case to lower courts might yet be the outcome, especially if the Justices have difficulty composing a majority to decide the constitutionality of the law.
The Louisiana law was upheld in a 2-to-1 ruling by a federal appeals court about a year ago, but then the full bench of that court split 9-to-6 in refusing to reconsider that decision. Abortion providers, arguing that the hospital privileges requirement would result in the closure of two of the three remaining clinics in the state, took the case on to the Supreme Court with a plea that the lower court simply refused to follow the precedent the Supreme Court had set in 2016 in invalidating the very similar Texas law.
With Justices Gorsuch and Kavanaugh joining the Court since the decision on the Texas law, the dynamics of the Court’s review of abortion laws may be changing. Justice Gorsuch, generally a conservative, replaced a strong opponent of abortion rights, the late Justice Antonin Scalia, but Justice Kavanaugh took the seat vacated by the retirement last year of Justice Anthony Kennedy.
Kennedy was a part of the five-Justice majority that struck down the Texas law in 2016; the others in that lineup were the Court’s four most liberal Justices. Kennedy also was a principal architect of the 1992 decision that salvaged much of the constitutional right to abortion that had been first declared in Roe v. Wade in 1973.
One factor in the Court’s decision against the Texas law was that, when it initially went into effect, it resulted in the immediate closing of 11 of Texas’s 40 abortion clinics, and later resulted in closing about half of the state’s total.
When the Court considers the two new cases involving the Louisiana law (which was passed by that state’s legislature shortly after the lawmakers there saw the effect that such a law had had in Texas), the likelihood appears to be that the four more liberal Justices will vote to nullify that statute.
That will put a good deal of the focus of the lawyers in the case, as well as of Court observers, on Chief Justice John G. Roberts, Jr., because he may well hold the deciding vote this time. He was one of the three dissenters when the Court ruled against the Texas law, although the opinion he joined was a narrow one based mainly on a procedural reason, not the merits of the law.
Perhaps of more importance, Roberts joined with the Court’s four liberal Justices last February temporarily blocking enforcement of the Louisiana law. That majority did not explain its reasons for doing so. One possible reason for the Chief Justice’s action could have been the strong complaints of the dissenters in the appeals court that the Justices’ Texas decision was not followed.
Three conservative members of the Court — Justices Gorsuch, Thomas and Samuel A. Alito Jr. – voted in dissent in February and thus would have allowed the law to be enforced, but they did not spell out their reasons. Justice Kavanaugh also would have allowed enforcement but he wrote that he had voted to do so only to permit the gathering of facts about the law’s actual effects.
The Court will hold a hearing on the combined cases early next year, and is expected to issue a final ruling before next summer. That would mean that the decision would emerge in the midst of the presidential election, in which the future of the Supreme Court may be a prominent campaign issue.