Leah Litman is an assistant professor at the University of California at Irvine School of Law.
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.
Today, reproductive justice advocates had reason for momentary celebration only because there were not yet five justices who were willing to allow the Louisiana law to go into effect at this moment. This reprieve may last mere months. The court is only one vote away from allowing the states and the lower federal courts to all but overturn a Supreme Court case that was decided as recently as 2016. That is not a cause for celebration; it is barely a reason to exhale.
The only other breadcrumb for reproductive justice advocates was the bittersweet confirmation that they were right about Justices Neil M. Gorsuch and Brett M. Kavanaugh after all. The two newest justices voted to allow the Louisiana law to go into effect, despite repeatedly pledging in their confirmation hearings to respect existing Supreme Court precedent even when they think it is wrong.
Kavanaugh alone chose to explain his vote, suggesting he has some modicum of shame. But what Kavanaugh said confirms what reproductive justice advocates warned about his tenure on the court of appeals: He will make flimsy distinctions with Supreme Court cases that favor access to abortion, and he will impose ostensibly procedural obstacles that may have the practical effect of denying women access to abortion entirely by making it prohibitively difficult to challenge restrictions on abortion.
Kavanaugh insisted that the court did not have to block the Louisiana law because Louisiana had represented in its brief to the Supreme Court that it would not actually enforce the law. But a promise not to enforce a law is not a reason to allow that law to go into effect, particularly when the court has declared that same law unconstitutional just two years ago. And even a small risk that the law would be enforced would have drastic consequences, because if a clinic closes even temporarily, it may not ever reopen. This dissent makes clear how Kavanaugh will bend over backward to limit access to abortion, and allow restrictions on abortion to go into effect based on nothing more than a pinkie swear.
The Louisiana law was the new court’s first chance to gut Roe. Four justices would have taken it, and allowed Louisiana to enforce the very same law that the court had so recently invalidated. At this point, the question is how long will Chief Justice John G. Roberts Jr. stand between those four justices and an open season on Roe v. Wade, the rule of law and respect for precedent.