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The Good News and Bad News about the Louisiana Abortion Decision

By Dustin Rowles | Politics | February 8, 2019 |

By Dustin Rowles | Politics | February 8, 2019 |


The Supreme Court, by a 5-4 decision yesterday, blocked a Louisiana law that would have gone into effect today and would’ve essentially limited the state to only one doctor who could’ve performed abortions. The law required that abortion doctors have admitting privileges at a hospital within 30 miles of the facility where the abortion is performed (John Oliver covered this extensively back in 2016). The law has been blocked in Louisiana since its enactment in 2014.

The good news here is that, even with Judge Kavanaugh on the bench, the court ruled the same as it had over a similar law enacted in Texas. Judge Roberts was the swing vote in this 5-4 decision. The bad news is, Judge Kavanaugh — as we all anticipated despite Susan Collins’ assertions to the contrary — voted in his dissent to allow the law to go into effect. This ruling also only temporarily blocks the law and does not prevent the Supreme Court from taking up the case in the future and voting to uphold the law.

The case does, however, seem to establish battle lines in the Supreme Court where it concerns Roe v. Wade, with the deciding vote coming down to John Roberts. Roberts also voted with the liberal side of the court to uphold Obama’s Affordable Care Act, so some (like myself) might be initially hopeful that John Roberts could pull a David Souter, a Bush I appointee who moved to the left side of the court.

That seems unlikely. While Roberts has voted with the liberals about as often as the previous swing vote, Justice Kennedy (57 percent), where it concerns close cases (5-4 decisions), Roberts still votes with conservatives more than 80 percent of the time. That doesn’t rule out the possibility that Roberts continues to move left as a response to a Court that is otherwise moving to the right, but I wouldn’t count on it.

However, where it concerns Roe v. Wade, I am cautiously optimistic that John Roberts — a big believer in stare decisis (meaning, he often upholds Supreme Court precedents) — will ultimately uphold Roe, although I could see him siding with conservatives where it concerns laws that might chip away at abortion access. Roberts ruled against this law (and the Texas law) because it placed an “undue burden” on a woman’s access to abortion, but Roberts may find other abortion restrictions less onerous.

In other words, Roberts could be saying that a woman should not have to hop on one foot, touch her nose, and twirl around in a circle three times to gain access to an abortion, but he may still say that a woman may need to hop on one foot, touch her nose, and twirl around in a circle once before she can gain access.

(Note: My guess is that rock-star commenter J.S. is gonna weigh in on this in the comments, and as always, she’ll likely provide great insights. So, do check out the comments (just avoid the NateMan puns, obviously!))

Dustin is the founder and co-owner of Pajiba. You may email him here, follow him on Twitter, or listen to his weekly TV podcast, Podjiba.

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