Brett Kavanaugh Just Dissented on Louisiana Abortion Law. This Could Mean Trouble for Roe v. Wade | Opinion
The divide between states supporting reproductive rights and states seeking to restrict those rights keeps growing, with a raft of new state laws that either protect or undercut abortion access, depending on the state. That divide now threatens to turn into a giant legal chasm.
Yesterday the Court decided, on a 5-4 vote, to keep in place a temporary stay of a Louisiana law that requires doctors performing abortions to have admitting privileges at a nearby hospital. That may sound innocuous, but it's a TRAP (Targeted Restriction of Abortion Providers) law aimed at shutting down abortion clinics. The practical effect would be to reduce the number of abortion providers in Louisiana.
In recent years several states have adopted TRAP laws. Three years ago, a Texas law, virtually identical to the Louisiana law, was overturned by the U.S. Supreme Court in Whole Woman's Health v Hellerstedt. The Texas law also would have required doctors who perform abortions to have admitting privileges at a nearby hospital. In rejecting it, the Court said that the law was not medically justified and constituted an "undue burden" on abortion access. That was in 2016, before the confirmations of Neil Gorsuch and Brett Kavanaugh to the Court.
This time, Chief Justice Roberts joined more liberal justices to block the Louisiana law from going into effect. If the Court had lifted the stay, two out of the three abortion clinics in the state might have been forced to close. But the law isn't struck down yet. The stay will remain in place until the Supreme Court decides whether or not to hear the case challenging the Louisiana law on its merits. If the Court does hear it, it's possible it will uphold it. Justice Kavanaugh wrote a dissent to yesterday's decision signaling his willingness to overturn the precedent of Whole Women's Health, which could spell trouble for the future of Roe.
It's also possible that at some later date the Court could reaffirm, yet again, its support for Roe and overturn the Louisiana law or similar TRAP laws adopted by other states. But unless and until it does, the future of abortion rights is still in legal jeopardy.
In the worst-case scenario, the new configuration of the Court could lead, ultimately, to the overturning of Roe, making it possible for states to outlaw abortions for the first time since 1973. If Roeis reversed, analysts say 21 states would likely uphold abortion rights, but 22 states would likely ban abortion outright, and others would restrict it.
Even if the Court does not overturn Roe, it's still possible for it to whittle away at abortion access by giving constitutional protection to state TRAP laws, like the Louisiana law, which have the practical effect of denying access to abortion.
In either case, the U.S. would become, in effect, the "divided states of reproductive health and rights." In some ways, we already are.
Last month, the Population Institute released its annual "50 State Report Card on Reproductive Health and Rights." It reveals that Americans' reproductive health and rights depend, increasingly, on where in the US they live. Twenty-two states received a "B" or higher, but the country as a whole was given a "D minus," 26 states were graded "D" or lower, and 19 states flunked. People in poorly performing states are finding it increasingly difficult to access abortion or even contraception services.
Kentucky, Mississippi, Missouri, Ohio, South Carolina, Texas and other states have tightened restrictions on abortion in recent years. If the U.S. Supreme Court upholds those restrictions, emboldened abortion opponents will press hard for similar restrictions in other states.
States on the other side of the divide are fighting back to preserve access to reproductive health care. Last month, New York, fearing that the U.S. Supreme Court might soon overturn Roe, passed the Reproductive Health Act, which brings New York's abortion law into line with the guidelines established by Roe. Previously New York allowed abortions after 24 weeks only if the mother's life was in danger, but the new law will allow abortions after 24 weeks if needed to protect the health of the mother. It also expands who can provide abortion services by allowing licensed nurse practitioners, physician assistants and licensed midwives to provide abortion services.
The U.S. Supreme Court could, at some point, reaffirm its support for Roe and reject any infringement of its protections. But there is still plenty of reason to be concerned that it won't. Given the uncertainty, other states should follow New York's lead and codify abortion rights.
Jennie Wetter is the Director of Public Policy at the Population Institute, which supports reproductive health and rights. She is also host of the rePROs Fight Back podcast.
The views expressed in this article are the author's own.
