Surprise! The Supreme Court Upholds Abortion Access Once Again

Today, the Supreme Court blocked a Louisiana law from going into effect that would have forced the closure of all but one abortion clinic in the state. The 5-4 decision in June Medical Services v. Russo, written by Justice Stephen Breyer, struck down a Louisiana TRAP law that forced abortion providers in the state to have admitting privileges at a nearby hospital, a medically unnecessary provision that is nearly identical to a Texas law that the Court declared unconstitutional just four years ago.

Once again this term, the Supreme Court defied expectations and voted to uphold people’s basic rights. 

An Immediate Win

In short, this is a huge win for Louisiana abortion providers and patients. It immediately strikes down the 2013 law that forced abortion providers to have admitting privileges at a nearby hospital, and the three Louisiana abortion clinics that still exist can continue to see patients and provide abortion care.

The decision also means that, for the time being, identical admitting privileges laws in other states are still invalid, just as they were four years ago. If Roberts had upheld Louisiana’s law, other states with similar laws would be allowed to enforce them, forcing dozens of clinics to close and potentially leaving the entire Southeast and Midwest an abortion desert.

For now, that catastrophe has been averted.

There was another, more nuanced component to the case that could have dramatically altered the landscape of challenging abortion restrictions in court. At stake was whether abortion providers even had the standing to bring suit against abortion restrictions like TRAP laws, which deliberately target them with onerous and unnecessary restrictions in an effort to force them to close. That would upend decades of precedence and throw out the entire model for challenging abortion restrictions in Court. 

Instead, this decision holds on that. For the time being, abortion providers still have the ability to bring suit against restrictions that threaten their ability to do their job. And it doesn’t leave abortion patients, who are already struggling to find care, with the task of bringing a federal lawsuit. That’s an undue burden if ever we’ve heard one. 

An Uncertain Future

While the decision is indeed a win, and one worth celebrating, it isn’t perfect. Chief Justice John Roberts, who joined the Court’s four liberal justices in striking down the law, made clear that he is still no friend to abortion rights.

In his own concurrence, Roberts wrote, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” 

Roberts would have most likely struck down the ruling in Whole Woman’s Health if the case before him clearly asked for that. But this case didn’t. Instead, abortion opponents tried to game the system. With two new Justices, they figured they could get the Court to simply flip on WWH. Louisiana’s law was the same as the Texas law. Roberts, concerned with the appearance of legitimacy for his Court first and foremost, couldn’t uphold Louisiana’s law and claim to adhere to precedence. His hands were tied, and he admitted that here.

This means two things. One, Chief Justice Roberts is still a foe of abortion rights and would likely uphold other restrictions, including some that currently exist, like mandatory waiting periods, or whatever new, absurd fabrication anti-choice legislators concoct next. 

What’s more, the four other conservative justices clearly understood the precedent regarding abortion rights and this specific case and were more than wiling to let this law go into effect. That is alarming for the future of abortion rights, and tells us that with one more conservative justice, the entire fabric of abortion rights could be undone.

There’s Still Work to Do

This is a short term victory, one that abortion rights desperately needed, and one that seemed relatively unlikely, given the conservative slant of the current Court. But this is a temporary fix, one that is predicated on the absurdity of Louisiana attempting to argue that their identical law was somehow different. Chief Justice Roberts couldn’t abide that, and he said so. But he left the door wide open to upholding future abortion restrictions.

This is no time to rest on our laurels. We can take a moment to savor this victory and to send love to thousands of grassroots activists, like our friends at ARC Southeast and others, who have been mobilizing and preparing for the worst. But the fight continues. Abortion rights are still on the line. And while abortion clinics are currently open in every single state, and abortion is legal nationwide, that doesn’t mean that access is easy. It’s still too hard to get an abortion. Twenty-seven states impose mandatory waiting periods on people seeking abortions, and 28 states require that providers lie to patients about unscientific “risks” of abortion. Ninety percent of U.S. counties have no abortion provider. There are too many hoops through which people are forced to jump, too many miles many are forced to travel, too many hostile protesters past which they are forced to walk.

Today, we celebrate. Tomorrow, we get back to work. 

Lauren Rankin is a freelance writer covering reproductive rights and feminist politics. Her work has been featured at the Washington Post, The Cut, Fast Company, Allure, Cosmopolitan, InStyle, SELF, Teen Vogue, and many more. She’s also served as a volunteer clinic escort at an independent abortion clinic in northern New Jersey since 2014. She lives in Boulder, Colorado.