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The Supreme Court, Abortion, and the 2020 Election


The Supreme Court has struck down a pro-life Louisiana law that would require abortion clinics to have admitting privileges to hospitals within a 30-mile radius.



What does this mean?



The Unsafe Abortion Protection Act, which was introduced by black pro-life Democrat Katrina Jackson, and signed into law by Democratic Governor John Bel Edwards, focused on women and babies who need emergency medical treatment in the event of a botched abortion. “Admitting privileges” means that the physician from the abortion clinic will be authorized to treat the mother and her baby at the local hospital, given the hospital’s recourses that are not available at the abortion clinic.



The Court’s majority ruled that the law placed an “undue burden” on women who are seeking abortion procedures, given that the law’s standards would close down many abortion facilities across the states and thus creating a “barrier” between women and their abortion procedure.



According to the Charlotte Lozier Institute, only three abortion clinics currently operate in Louisiana. Louisiana’s Unsafe Abortion Protection Act would have closed one, since the other two facilities do have admitting privileges. But this is the Supreme Court, thus their decision applies across the country.




How does this relate to the 2020 presidential election?



Roe v. Wade is currently being threatened in the lower Federal courts and is very likely to make its way to the Supreme Court in the next four to five years, likely after justices Ginsberg (87) and Breyer (81) retire, leaving the two liberal vacancies up for grabs.



Roberts’ jurisprudence suggests that the Roe precedent would mean a no-go for any case challenging it, as far as he’s concerned. To be fair, since the Roe decision was upheld in 1992, there has been significant medicinal advancement which could change the arguments for the future and could possibly derail the invocation of stare decisis. Regardless, pro-life advocates should not hold much faith in Roberts if Roe is challenged at the High Court – thus we need conservative replacements for Ginsberg and Breyer which will not happen with a Biden administration.




What makes you think the Roe challenge will make its way to the Supreme Court?



There are a few ways the Supreme Court selects around 80 of the nearly 8,000 cases they are presented with per year:



  1. Does the case challenge a Supreme Court precedent?
  2. Are the Federal Appeals Courts conflicted in their rulings?
  3. Does the case have a national impact?



To the first, yes. The Roe (Casey) decision restricts abortions after viability (which The Court ruled was around 28 weeks), but the “heartbeat bills” currently in review in the lower Federal courts, put that restriction at about 8 weeks. So, yes, these bills certainly challenge Supreme Court precedent.



To the second, we don’t know just yet, but probably. Many states have passed heartbeat bills and these states fall in different jurisdictions of Federal Appeals courts. Thus, it is likely that multiple Federal Appeals courts will be hearing the cases.



The third question is an obvious yes.



All of that to say, there is a great chance that the Roe decision will be challenged at the Supreme Court in the next 4-5 years, and thus it is imperative that the right president be in office to appoint the right justices for this climactic decision.




A note regarding Roberts’ decision:



Roberts’ position is very interesting, considering a case he ruled on in 2016, Whole Women’s Health v. Hellerstedt. The 2016 case challenged a Texas law identical to the Louisiana law struck down this morning. However, in 2016 Roberts ruled to uphold the Texas law, which begs the question as to why he ruled to strike down the Louisiana law. The answer is made clear in his opinion. Roberts invoked stare decisis, a legal doctrine where jurists’ decisions are based solely on the precedent set forth in previous identical cases. That is, if The Court is ruling on a case identical to a case that has been ruled on before, The Court will rule the same. Roberts said in his opinion this morning that he stands by his 2016 Hellerstedt opinion, but has changed his position in June Medical v. Russo in light of Hellerstedt’s precedent.



“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided.”



Roberts continued:



“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents.”



In summary, Roberts disagrees that the law should be struck down on the merits, but also disagrees that it can be upheld against current precedent – the precedent established in Hellerstedt.