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The Supreme Court Just Agreed to Hear Its First Major Abortion Case Since Kavanaugh

The case could chip away at Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide.

by Carter Sherman
Oct 4 2019, 1:57pm

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The Supreme Court announced Friday that it would take up its first major abortion-rights case since Brett Kavanaugh cemented the high court’s conservative majority, a move that’s sure to pour gasoline on the fires already raging in the national war over abortion.

The justices will hear oral arguments in a case, June Medical Services v. Gee, which involves a Louisiana law that would require abortion providers to have admitting privileges at a hospital within 30 miles of their clinics. A Louisiana abortion clinic and two providers sued over the law, arguing that if the regulation were to go into effect, the state would have only one abortion clinic.

The Louisiana case does not directly challenge Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. But if the court rules to let the law go into effect, abortion rights activists say it will hack away at Roe’s protections.

Toppling Roe has been a Republican fever dream for decades, and with conservative justices Kavanaugh and Neil Gorsuch on the bench, abortion opponents say they’ve never been closer.

READ: One of the most powerful anti-abortion groups in the country is convinced the end of Roe v. Wade is coming

The Fifth Circuit Court of Appeals agreed to let the Louisiana law go into effect, even though it’s essentially identical to a Texas law that the Supreme Court struck down in 2016, in the landmark abortion case Whole Woman’s Health v. Hellerstedt. Abortion rights activists heralded the case as one of their movement’s greatest victories — but at the time, swing justice Anthony Kennedy still sat on the court.

If the current Supreme Court rules in favor of keeping the Louisiana law, advocates fear their decision will essentially signal the justices’ willingness to gut past court decisions that protect access to abortion. That’s not a good sign for Roe’s longevity.

Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, urged the Supreme Court to strike down the Louisiana law.

"For over four decades, the Supreme Court has repeatedly affirmed an individual’s constitutional right to abortion — and this time should be no different,” she said in a statement. “Just as it did three years ago, the court should recognize the harm this law poses to the fundamental right to abortion and strike it down.”

"Women in Louisiana and across the country are counting on the court to protect their right to abortion — and their health, equality, and freedom," she continued.

“TRAP” laws

Both the Texas and Louisiana restrictions are what activists call “TRAP laws,” or “targeted regulation of abortion providers.” These kinds of laws often mandate that abortion clinics be set up like surgical facilities, with extra-wide hallways or doors, or require abortion providers to have admitting privileges at hospitals, which let doctors admit patients.

Abortion rights proponents say these restrictions are onerous, medically unnecessary, and designed, in fact, to close abortion clinics. (If somebody needs emergency care, federal law prohibits hospitals from turning them away — regardless of whether their doctor has admitting privileges.) After the restrictions in Texas took effect, about half of the state’s clinics closed.

When the Supreme Court ruled that the Texas restrictions were unconstitutional, the decision was widely seen as a rebuke of TRAP laws. If the Louisiana law is allowed to stand, that rebuke will lose its sting.

READ: How to translate Brett Kavanaugh's talk about abortion

The Supreme Court’s Friday decision to hear the case isn’t the first time the justices have reckoned with this Louisiana law. Back in February, when it was hours away from going into effect, the justices ruled to temporarily block it in a 5-4 decision. Chief Justice Robert Roberts voted with the liberal wing of the court.

Though Roberts is generally seen as a conservative, abortion rights activists are still crossing their fingers that he’ll be their friend in this case. Roberts is frequently concerned with preserving the court’s legal legacy and ensuring that it rises above the daily political squabbles of Washington, D.C.

But in February, the chief justice gave no sign of his thinking on the Louisiana case, because the decision to temporarily block the law did not include any reasoning.

Cover image: In this Friday, Jan. 18, 2019 file photo, anti-abortion activists march outside the U.S. Supreme Court building, during the March for Life in Washington. Activists on both sides of the abortion debate react cautiously to a Thursday, Feb. 7, 2019 Supreme Court vote blocking Louisiana from enforcing new abortion regulations, agreeing that the crucial tests of the court's stance are still to come. (AP Photo/Jose Luis Magana)

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