Upcoming Supreme Court case may create greater restrictions on abortion

On March 4, the Supreme Court will hear oral arguments in an abortion case that could signal a dramatic lessening in the constitutional protection for women’s reproductive autonomy. In June Medical Services LLC v. Gee, the Court will consider a challenge to a Louisiana law that requires a doctor performing an abortion to have admitting privilege at a hospital within 30 miles.

Although this should be an easy case for the Court to declare the law unconstitutional, I fear that there are now five justices inclined to allow much greater restrictions on abortions and, ultimately, to overrule Roe v. Wade.

In 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court, in a 5-3 decision, declared unconstitutional a Texas law that required doctors to have admitting privileges at a hospital within 30 miles. In fact, the Louisiana law now before the Court was modeled after the Texas statute.

Justice Breyer wrote the opinion for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. The Court stressed that, in deciding whether a law imposes an undue burden on abortion, it is for the judiciary to balance the justifications for the restrictions against their effects on the ability of women to have access to abortions. The Court concluded that the Texas law would greatly limit the ability of women in Texas to have access to abortions, without any evidence that the restrictions would protect women’s health.

The Court explained that few women require hospitalization after an abortion and, if it is needed, doctors at the hospital would provide treatment. At the same time, the Court explained that the effect of the Texas law would be to close many of the facilities in the state where abortions are performed.

The Supreme Court should follow this precedent and strike down the Louisiana law. It is expected that there are four votes for this – Ginsburg, Breyer, Sotomayor, and Kagan. But is there a fifth without Anthony Kennedy? Justice Alito wrote the dissent in Whole Woman’s Health, joined by Chief Justice Roberts and Justice Thomas. None of those three justices ever have voted to strike down any restriction on abortion.

This is the first abortion case to be argued in front of Justices Gorsuch and Kavanaugh. Everything known about them from their writings before going on the Supreme Court is that they are very likely to uphold restrictions on abortion.

If the Court overrules Whole Woman’s Health, it would be a clear signal of a willingness to uphold the many laws that have been adopted that are referred to as “targeted restrictions of abortion providers.” States have adopted hundreds of new laws, some of which would effectively end abortions. Many of these laws were struck down after Whole Woman’s Health and overruling that decision would indicate a Court willing to permit such restrictions.

The Court also could use this as the vehicle for overruling Roe v. Wade and ending constitutional protection for abortion rights. Many believe that there are five votes to do so, with Gorsuch and Kavanaugh joining Roberts, Thomas and Alito. But most think that Justice Roberts would prefer the Court to move incrementally and would be unlikely to go so far as to use this case to end all abortion rights.

Roe v. Wade, and more recently Whole Women’s Health v. Hellerstedt, were rightly decided. It should be left to each woman, and not the government, to decide whether to continue or to terminate a pregnancy. States should not be able to impose restrictions on abortion that do nothing to protect a woman’s health and serve no purpose except to limit the availability of abortions.

One would hope that conservative justices who preach judicial restraint would have respect for precedent. One would hope that conservative justices would want to limit government power over the intimate aspects of a woman’s life.

But I am not optimistic. I fear June Medical Center v. Gee is going to see the five conservative justices allowing much greater restriction on abortion, and permitting the government to make it much more difficult for women to exercise their fundamental constitutional right of reproductive autonomy.

This story was originally published February 21, 2020 at 5:00 AM.