A woman’s nominal right to choose to have an abortion is worth nothing if Republican-led state legislatures and governors — with the blessing of the Supreme Court — can ensure that there are no or almost no clinics or doctors available to provide the procedure. Since its 2016 decision in Whole Woman’s Health v. Hellerstedt, the court has explicitly recognized this fact, which is why it then struck down a Texas statute designed to force the closure of most of the state’s abortion clinics.
But on Friday, the Supreme Court announced that it would be hearing a virtually identical case, June Medical Services v. Gee, to determine the constitutionality of a similarly draconian Louisiana abortion statute targeting that state’s clinics. Given that it’s been a mere three years since the first decision, and the cases themselves are virtually the same, the only factor that would necessitate a full hearing is the makeup of the Supreme Court itself.
All of that is to say: The religious conservatives who held their noses and voted for Trump in 2016 to get a conservative-leaning court peopled with the likes of Brett Kavanaugh in order to overturn Roe v. Wade are about to get a major reward at the expense of the reproductive freedom of American women.
This case in question is about a Louisiana law that applies onerous licensing requirements on doctors who perform abortions, as a backdoor attempt to eliminate abortions in the state. The law would leave a single abortion clinic with one doctor in operation in a state with more than four and half million residents. To the public officials responsible for such laws, this is a feature, not a bug: The laws are designed to shut abortion clinics down, not to make the abortion procedure safer.
Under current law, the Louisiana statute is unquestionably unconstitutional. In Planned Parenthood v. Casey, the 1992 case that upheld Roe v. Wade while giving legislatures more leeway to regulate the procedure, a regulation is unconstitutional if it constitutes an “undue burden” on a woman’s right to choose to obtain an abortion. The court had little difficulty concluding in Whole Women’s Health that the Texas law, which provided “few, if any, health benefits for women” while being “a substantial obstacle to women seeking abortions,” was an undue burden that had to be struck down.
The fifth vote in Whole Woman’s Health, however, was provided by Justice Anthony Kennedy, who retired in 2018 and has been replaced by the fiercely anti-abortion Brett Kavanaugh. Given that the three dissenters Whole Woman’s Health remain on the court, and that the almost certainly anti-Roe Neil Gorsuch has filled the seat left vacant by Antonin Scalia’s death in 2016, the math seems clear: Whole Woman’s Health — and therefore, effectively, Roe v. Wade — is a goner.
Some supporters of abortion rights may nonetheless be optimistic because, in February, Chief Justice John Roberts — who, on a court with Kavanaugh, Gorsuch, Samuel Alito and Clarence Thomas is now seen as a “moderate” — joined with the court’s four Democratic-appointed justices to prevent the Louisiana law from immediately going into effect. But this was only necessary because the 5th Circuit Court of Appeals effectively nullified the binding Whole Woman’s Health precedent by upholding the Louisiana law and, while the Supreme Court can overrule its own precedents, lower courts are required to apply them.
But the fact that Roberts doesn’t like lower courts ignoring his rulings doesn’t mean that he would be reluctant to overrule the precedent itself — and it is incredibly unlikely that he’s changed his mind since voting to uphold the Texas law only three years ago. And given that Kavanaugh and Gorsuch were fine with the 5th Circuit flouting the Supreme Court’s authority to uphold the Louisiana statute, there is no doubt that they, too, will vote to uphold the Louisiana law instead of the precedent.
It is fair to ask, however, whether the Supreme Court will really want to overrule Roe v. Wade in an election year. The decision, after all, is supported by a huge majority of the public, and Donald Trump’s margin for error is already razor-thin. But the beauty of the Louisiana case is that the court could inflict substantial damage to Roe without needing to formally overrule it.
Had the court taken up, say, one of the bans on abortions after six weeks of pregnancy that have been recently passed by state legislatures, it would be forced to face Roe head on because, even after its conservative modification by the aforementioned 1992 Casey decision, the law still plainly holds that outright bans on first trimester abortions are unconstitutional. This way, the court could uphold the Louisiana law by pretending to enforce Casey while defining the “undue burden” standard in a way that allows virtually any state regulation short of a total ban to be seen as constitutional without needing to announce the overruling of a precedent.
This slow hollowing out of precedents is a Roberts specialty, designed for large substantive gains while minimizing political costs, and is perfectly designed for an attack on Roe v. Wade. While the court may not be fully honest about what it will accomplish, upholding the Louisiana law would effectively constitute the overruling of Roe v. Wade — and this outcome is overwhelmingly likely.
If Whole Woman’s Health is effectively overruled by upholding the Louisiana law, then Roe is, for all intents and purposes, dead — or, at best, awaiting its final breath. Supporters of reproductive rights will need to make clear to the rest of the country that will find the legalese hard to follow what the court is doing and what’s at stake going forward. What matters is not whether the court announces that it is overruling Roe, but if it gives states unlimited power to stop abortions from happening even if they are nominally legal. If the Louisiana law is upheld — as it probably will be — that will be the future for many women living in Republican-controlled states.