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What the ruling on abortion is — and isn't 

Anti-abortion protesters hug goodbye outside the Supreme Court

Anti-abortion protesters hug goodbye outside the Supreme Court on Capitol Hill in Washington on Monday. The Supreme Court has struck down a Louisiana law regulating abortion clinics, reasserting a commitment to abortion rights over fierce opposition from dissenting conservative justices in the first big abortion case of the Trump era. Credit: AP/Patrick Semansky

In a narrow ruling, the Supreme Court rejected another of the relentless challenges from states seeking to limit access to abortion by making it more difficult for doctors and clinics to provide the service.

With Chief Justice John Roberts providing the deciding vote, the court refused to overturn a sweeping 2016 ruling on an identical Texas law requiring doctors to have hospital admitting privileges. That opinion came before Donald Trump was elected president and put two conservative justices, Neil Gorsuch and Brett Kavanaugh, on the court. Gorsuch filled a vacancy after the death of Antonin Scalia, who would have voted to uphold such restrictions. The brutal fight over Kavanaugh’s nomination, however, was in part because he was replacing Anthony Kennedy, who voted in the majority in the 2016 case to reaffirm Roe v. Wade and to set up a tougher standard for states if they sought to use regulations to limit access to abortion.

After abortion foes lost in the courts on waiting periods and spousal consent as ways to limit abortions, their tactics shifted to regulatory roadblocks. That’s why the 2016 case was so important: It gave district courts the ability to make factual findings on whether regulatory changes which were ostensibly presented as efforts to make abortions safer, such as requiring doctors to have hospital admitting privileges, would make it more difficult and dangerous for a woman to obtain an abortion because more clinics would close.

In Monday’s ruling, Roberts, who was in the minority four years ago, did not join the four liberal justices in their opinion but only provided his vote to strike down the Louisiana law because of the precedent set in 2016. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents,” he wrote.

It was yet another consequential sign that Roberts, who joined a ruling earlier this month on temporarily blocking Dreamers from being deported because of a Trump executive order, is determined to maintain the court’s legitimacy when it is thrust into political controversy. If justices could so quickly dismiss precedent, particularly on issues supported by a majority of the public, the court’s reputation as a principled arbitrator would be severely damaged.

The slim margins, however, show how fragile abortion rights might be. There are at least a dozen cases challenging Roe working their way through the courts, and the winner of the 2020 election is expected to have several court vacancies to fill. That’s why Trump, who claims he made the court more conservative, is seeking to shore up support with his evangelical base by promising to soon release a list of potential nominees for his second term. But for now, this is mostly a win not for either side in the abortion wars, but for the view that the court as an institution can refuse to bend to political will.

— The editorial board

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