High court takes abortion vote, but key tests to come
Activists on both sides of the abortion debate are reacting cautiously to a 5-4 Supreme Court vote blocking Louisiana from enforcing new abortion regulations. They agree that the crucial tests of the court’s stance are still to come.
Depending on the viewpoint, the vote represented a temporary victory or setback – but not proof as to how the court might deal with a slew of tough anti-abortion laws working their way through state legislatures and federal courts.
“We’re elated – but not in the sense of uncorking the champagne,” said Center for Reproductive Rights attorney Travis Tu, who has helped lead the fight against the Louisiana law. “We’re elated in the sense of we just dodged a bullet.”
NARAL Pro-Choice America President Ilyse Hogue, while relieved by the court’s vote, said it “illustrates a sobering reminder: The thread that women’s rights hang by is dangerously thin.”
The law in question would require Louisiana abortion providers to have admitting privileges at nearby hospitals. Chief Justice John Roberts joined the Supreme Court’s four liberals Thursday in putting the law on hold pending a full review of the case. President Donald Trump’s two appointees, Neil Gorsuch and Brett Kavanaugh, were among the four conservative justices who would have let the law take effect.
Activists on opposing sides voiced hope that the case will eventually return to the Supreme Court for a definitive ruling on the substance of the law.
“We will continue to do all that we legally can to protect Louisiana women and the unborn,” said Louisiana Attorney General Jeff Landry.
Benjamin Clapper of Louisiana Right to Life said he was not concerned by Roberts’ break with the other conservative justices, suggesting the chief justice might eventually vote to let the law take effect.
“We don’t see last night’s decision necessarily as a setback,” Clapper said. “It sets the stage for a full review that could go either way.”
Beyond the Louisiana law – which resembles a Texas law struck down by the Supreme Court in 2016 – many other anti-abortion measures are being litigated in the courts or being considered in this year’s legislative sessions. Many were designed to present a direct challenge to Roe v Wade, the 1973 Supreme Court ruling that established a nationwide right to abortion.
In at least six states – Florida, Kentucky, Mississippi, Ohio, South Carolina and Tennessee – efforts are underway to enact bills to outlaw abortions after a fetal heartbeat is detected, as early as six weeks into a pregnancy. Backers of these bills said they were undeterred by the Supreme Court’s latest action.
“I’m not really concerned at this point what the court does,” said Mississippi state Sen. Angela Hill. “I’m concerned about doing what Mississippi wants us to do.”
Asked if the Supreme Court vote would have an impact on the “heartbeat” bill debate in Ohio, anti-abortion activist Janet Porter said, “None whatsoever.”
Porter, author of the original legislation that’s now spread to other states, noted the health challenges facing liberal Justice Ruth Bader Ginsberg and suggested that conservatives will have “yet another judge on the court by the time we get there.”
She also questioned the notion that Roberts’ vote with the court’s liberal wing in the Louisiana case signaled that he’d side with them in future abortion cases.
Ohio Right to Life President Mike Gonidakis agreed.
“What Justice Roberts’ action says to us is that he wants the whole thing briefed, he wants the opportunity to grill both sides,” Gonidakis said.
Abortion rights supporters also expect Roberts to cast the critical swing vote in future abortion rulings.
“We know there are four justices who were willing to allow a law to take effect even though the Supreme Court struck down an identical law less than three years ago” said Jennifer Dalven, who heads the American Civil Liberties Union’s Reproductive Freedom Project. “We don’t know how that will play out with other laws. … It’s really a question of Chief Justice Roberts.”
In addition to the “heartbeat” bills, several other anti-abortion measures have surfaced in multiple states, including two that National Right to Life executive director David O’Steen views as strong candidates to pass muster with the Roberts-led Supreme Court.
One type of measure would ban most abortions after 20 weeks of pregnancy on the disputed premise that a fetus can feel pain at that stage. Another set of bills seeks to ban a commonly used second trimester abortion procedure known as dilation and evacuation, and referred to by abortion opponents as “dismemberment abortion.”
O’Steen said Roberts “would have every reason” to support both of these measures if they came before the Supreme Court.
At the lone abortion clinic operating in New Orleans, nurse Vanessa Shields-Haas, who helps escort patients into the facility, said she was pleasantly surprised at the 5-4 vote to block the state law’s implementation.
“The new makeup of the Supreme Court indicated that it was likely it would have gone through, which would have had devastating consequences,” she said. “It’s clear that this law is about ideology. It’s not about safety.”