Supreme Court to Hear First Abortion Case With Trump-Appointed Justices on the Bench

The U.S. Supreme Court on Friday announced that it would hear its first abortion case since President Donald Trump appointed two staunchly conservative justices to the bench. The court will hear oral arguments on a Louisiana law requiring abortion clinic doctors to have admitting privileges at a nearby hospital and has the potential to reshape foundational principles governing access to the procedure.

After Louisiana’s legislature passed the Unsafe Abortion Protection Act in 2014, Hope Medical Group for Women filed a lawsuit to prevent the law from taking effect, arguing that it would cause two of the state’s three abortion providers to shutter their doors and severely limit women’s access to the procedure.

Statutes aimed at indirectly curtailing access to abortions by medically unnecessary requirements are common in more conservative states and are sometimes referred to as “targeted restrictions on abortion providers,” or TRAP laws.

An eight-justice Supreme Court in 2016 struck down an almost identical Texas law by a 5-3 vote, reasoning that it offered minimal medical benefit and imposed an undue burden on access to abortion. However, Justice Anthony Kennedy’s determinative vote has been replaced by Trump appointees Neil Gorsuch and Brett Kavanaugh.

The U.S. Court of Appeals for the Fifth Circuit in 2016 upheld Louisiana’s abortion law, but the Supreme Court in February blocked it from going into effect until litigation was resolved. The court’s interim ruling hinged on Chief Justice John Roberts switching sides and joining the court’s four liberal justices despite his 2016 vote to uphold Texas’ abortion law. However, Robert’s recent vote may not indicate his ultimate position on Louisiana’s law.  Roberts may be apprehensive about presiding over the court that undercuts abortion rights and further politicizes the court. He also may have wanted to ensure that the decision ultimately be left to the Supreme Court rather than a federal appellate court.

The case would not allow the justices to revisit the court’s decision in Roe v. Wade, as the law does not attempt to outlaw abortion procedures. The court will instead look to another seminal case on reproductive rights, 1992’s Planned Parenthood v. Casey. In Casey, the court ruled that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”  Under Casey, laws which create such burdens and obstacles are unconstitutional.

[Photograph by Fred Schilling/Supreme Court Curator’s Office.]

Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.

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