Last Call For A Supreme Disregard Of Precedent

Late Thursday night, Chief Justice John Roberts joined the four liberal justices on the Supreme Court to block a lower court order that would have effectively closed Louisiana's remaining abortion clinics in what was clearly another "I don't want the Roberts Court to be remembered for that" decision (see saving Obamacare a few years ago).

That wasn't the problem, of course.  The problem was Justice Kavanaugh's first major case opinion as a Surpeme Court Justice, a shocking dissent that makes it very clear he was put on the court to end Roe v Wade and reduce America's women to birthing units.

The Supreme Court gave reproductive justice advocates an unexpected win on Thursday night when it voted 5 to 4 to stay a court of appeals’ decision that could have closed abortion clinics in Louisiana. The chief justice joined the four more liberal justices in voting to prevent the Louisiana law from going into effect. That small achievement underscores how much progressives stand to lose with the new court and how low our standards for victory have become.

At issue in June Medical Services v. Gee is a Louisiana law that requires abortion providers to obtain admitting privileges at a hospital within 30 miles of where the providers perform abortions. Just two and a half years ago, the Supreme Court held that very same requirement unconstitutional when Texas enacted it.

The U.S. Court of Appeals for the 5th Circuit maintained that the burdens imposed by Louisiana’s admitting privileges requirement are less severe than the burdens imposed by the same requirement in Texas. The Texas law would have shuttered some 20 clinics, whereas Louisiana’s law would shutter only one or two of the state’s three clinics. Similarly, the 5th Circuit acknowledged that it did not have any evidence that the Louisiana admitting-privileges requirement would help the health or safety of any women, even though it created a burden on providers and their patients. That is the standard the Supreme Court set in the Texas case for when a law is unconstitutional, but the court of appeals said that it could imagine how it might be plausible to think the requirement might benefit some women.

It is easy to see how this kind of analysis will make safe, accessible abortions a thing of the past in many parts of the United States. If a law does not amount to an unconstitutional burden unless it does something as dramatic as close 20 clinics in a geographic area as large as Texas, almost every law would be constitutional. And if a law does not amount to an unconstitutional burden if courts can invent a justification for it, then laws would be upheld even when there is no evidence that they would help any woman, ever.

That is how Roe v. Wade will die. Not with a bang, but with a million little distinctions that judges will draw to limit the impact of any cases that invalidate restrictions on abortion. By voting to allow the Louisiana law to go into effect, four justices gave the okay to states and lower courts to limit Roe by whatever means necessary.

How long Chief Justice Roberts will stand as the only bulwark between women's reproductive rights and a future where half the states in the country have banned safe abortion procedures, I can't tell you.

And that's the problem.