There is only one reason the U.S. Supreme Court is revisiting a 2016 decision that supported abortion rights, and that is that with two new conservatives on the bench they are ready to start taking big bites out of Roe v. Wade.
When the litigants in a major abortion case came calling recently, the easiest and most obvious thing for the U.S. Supreme Court to say would have amounted to “get outta here, we just decided this very question three years ago!”
The case is June Medical Services v. Gee, a challenge to a Louisiana law that requires doctors who perform abortions to have admitting privileges at hospitals within 30 miles of their clinics.
Sound familiar? It’s identical to a major requirement in a Texas law that the high court struck down in Whole Woman’s Health v. Hellerstedt in June 2016. Because the regulations provided no discernible health benefits and had caused about half the state’s abortion clinics to close, the court held that the law placed an unconstitutionally undue burden on a woman’s right to terminate her pregnancy.
The Texas statute was a TRAP (short for “targeted regulation of abortion providers”), one of the many nitpicky laws that opponents of abortion rights have been tirelessly advancing in an attempt to hassle abortion providers out of business.
TRAP laws impose medically unnecessary licensing rules, architectural requirements and procedural standards that make it difficult to impossible for clinics to operate. In this way, abortion rights foes hope to effectively outlaw the practice without mounting a politically unpopular attack on Roe v. Wade, the 1973 decision that guaranteed the right to abortion under most circumstances.
There’s nothing subtle about the effort. Yes, the advocates lay it on thick with expressions of concern for maternal health and safety, but they’re not fooling anyone. Their fretful oversight never applies to facilities that provide statistically more dangerous services such as dental surgery, colonoscopies and assistance in live births.
Supporters of abortion rights were cheered when the Supreme Court disarmed this particular TRAP. And they hoped the justices would be insulted and dismissive when Louisiana went to court to defend a law nearly identical to the one they had rejected.
No such luck. Last Friday, the Supremes ignored their own precedent and agreed to hear the very same matter again this term.
Why in the world?
Well, the 2016 case was decided by a 5-3 vote (Justice Antonin Scalia had died and not yet been replaced). But since then, conservative Justice Neil Gorsuch has replaced Scalia, and Justice Anthony Kennedy, an abortion moderate who voted with the majority in Hellerstedt, has retired and been replaced on the court by Justice Brett Kavanaugh, a reliable conservative who tipped his hand earlier this year when he voted to deny a stay of the Louisiana law at issue.
Do the math. Add Gorsuch and Kavanaugh to three dissenters in 2016 — Justice Samuel Alito, Justice Clarence Thomas and Chief Justice John Roberts — and the conservatives now have the five votes they need to uphold the Louisiana law and open the floodgates for more aggressive TRAP laws nationwide.
And don’t be fooled. The only reason to demand that abortion clinic doctors have admitting privileges at nearby hospitals is to cause clinics to close and make it more difficult for women to obtain safe, legal abortions.
Complications in first-trimester abortions requiring hospital admissions are vanishingly rare — less than a quarter of 1%, according to research cited in the 2016 majority opinion. Such complication rates in much rarer second-trimester abortions are less than one half of 1%.
Further, wrote Justice Stephen Breyer for the majority, “most of these complications occur in the days after the abortion, not on the spot,” so patients seek treatment at the hospitals nearest their homes. Indeed, the fact that doctors who perform abortions rarely refer patients to nearby hospitals is a major reason why they can’t get admitting privileges. And finally, hospitals treat patients whether or not their doctors have such privileges.
Breyer wrote, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
Not. One. Case.
In his dissenting opinion in 2016, Thomas looked at the same data and saw “medical and scientific uncertainty.” He groused that overturning these TRAP laws would turn the Supreme Court into “the country’s ex officio medical board, with powers to disapprove medical and operative practices and standards throughout the United States.”
Now Thomas is poised to write the majority opinion after the formality of oral argument sometime next year. The conservative project to install an anti-abortion-rights majority on the Supreme Court is about to pay off with a major culture war victory that will vindicate bogus justifications for clinic crackdowns and eviscerate women’s rights under Roe.
Liberal supporters of abortion rights who couldn’t be bothered to vote in 2016 or who supported third-party candidates because Democrat Hillary Clinton didn’t pass their purity test will have themselves to blame. And just maybe they’ll figure that out in time for the next presidential election a little more than a year from now.