The decision in a case outside of Louisiana is seen as a defeat for conservatives as more abortion cases make their way to the Supreme Court.
In recent weeks, officials in Texas, Ohio, Indiana, Kentucky and Oklahoma have argued that the Supreme Court’s 5-4 ruling actually supports their protection against anti-abortion laws, even though judges have ruled against Louisiana.
The U.S. arguments coincide with a decision by a federal appeals court earlier this month to reinstate several restrictions on abortion in Arkansas, based in part on the Supreme Court’s apparent decision to choose.
The noise in federal and state courts is largely due to the agreed opinion of Chief Justice John Roberts on the Louisiana case – one that doomed state restrictions on abortion clinics and doctors, but refuted the standard used by the four liberal judges. the court.
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Chief Justice Stephen Breyer says the Louisiana law, which requires abortion doctors to allow privileges in nearby hospitals, creates a “significant barrier” for women seeking abortion without “significant health benefits.” “. Roberts, granting the decisive fifth vote, rejected the use of a balancing test and said the law should fall simply because of a 2016 Supreme Court precedent.
The court, he said, must “deal with such cases. The outcome in this case is controlled by our decision four years ago to invalidate an almost identical Texas law.”
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Opponents of abortion have argued in several cases this summer that the five judges agreed only on the need to determine the weight of the law. This was the standard used by the Pennsylvania Supreme Court in 1992, which upheld abortion rights as well as reasonable state restrictions.
Proponents of abortion rights responded that the 2016 balancing test standard remains intact, allowing them to win if the restriction has little or no benefit to mothers or their fetuses.
So far, it is clear that the Supreme Court’s latest abortion decision “has led to more litigation, not less,” said Julie Rickelman, senior director at the Center for Reproductive Rights, which represented the Louisiana Oral Clinic in March. .
Virginia Law School professor Richard Ree, a scholar of court decisions that does not give a majority opinion, said those arguments are likely to continue.
“This is the latest round of debate on what is considered a precedent and how you assess the precedent,” Re said. “The debate will rage.”
“Really strange world”
The decision of the Supreme Court of June 29 in June Medical Services v. Russo was a surprise to opponents of abortion. The court imposed a similar restriction on Texas clinics in 2016, but court attorney Anthony Kennedy, who filed the fifth vote, later withdrew and was replaced by more conservative trial judge Brett Cavanaugh.
However, Roberts once again proved to adhere to the process and precedent. He disagreed with the case in Texas, but said it should be followed in Louisiana.
However, his separate opinion opened the door for supporters of other restrictions – such as ultrasound requirements, waiting periods and parental notice, as well as bans on the most common type of second-quarter abortion – to argue that Roberts’ opinion helps. their cause.
“The chief judge’s opinion is in control because it announces the only legal proposal that the majority of judges who voted to repeal agreed: substantially burdensome laws can be unconstitutional,” Ohio Attorney General Dave Yost told the U.S. Court of Appeals for 6- you circle. Ohio is trying to stop the abortions sought, at least in part, because of the diagnosis of Down syndrome.
Similarly, Kentucky Attorney General Daniel Cameron called on the same appellate court to reconsider its decision to lift the ban on abortion in the second trimester, known as expansion and evacuation.
“Although (the Supreme Court’s decision) has six different opinions, the reasons for Judge Roberts’ opinion are determined because they have the only justification on which the five judges who voted to repeal agreed,” Cameron’s office said.
Abortion advocates are fighting this argument. While acknowledging that Roberts had rejected the liberal judges’ test of balancing burdens and benefits, they said he had not erased previous Supreme Court rulings adopting that standard. They cited recent court rulings in Maryland and Texas, where judges ruled in their favor.
“It would be a really strange world if a judiciary could overturn a binding decision issued by a majority of the court,” said Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project.
“Reducing their losses”
The judges of the Federal District and the Court of Appeal weigh both parties.
In Maryland, Federal District Judge Theodore Chuang said Roberts did not single-handedly repeal the balancing test he then applied by removing the federal requirement for women to visit medical facilities to receive abortion drugs.
Chuang ruled that visits to people did not provide significant benefits and declared them unnecessary in light of the COVID-19 pandemic. The Trump administration has asked the Supreme Court to block the ruling.
In Texas, a panel of the 5th District Court of Appeals denied the state’s efforts to block the lower court’s 2017 decision, which lifted the state’s ban on expansion and evacuation, the usual second-trimester procedure. Presidential nominee Donald Trump Judge Don Willet disagreed.
But the decision of the 8th Arkansas chain gave hope to abortion opponents, as did Planned Parenthood’s decision to reject its challenge to an Indiana law requiring women to undergo ultrasound examinations at least 18 hours before the abortion procedure. This decision is due at least in part to the increased availability of ultrasound examinations.
“It seems clear that the positions of abortion advocates show an understanding that their cases have become much more difficult,” said Stephen Aden, chief legal counsel for the United States, united for life. “They make strategic decisions that show they are reducing their losses.”
Rickelman responded: “The other country is trying to use all necessary means to continue to limit abortions” as part of a “coordinated national strategy”.
Planned Parenting does not waive a separate challenge to Indiana’s parental notice requirement. The two sides in the battle recently returned to court, where Indiana Attorney General Curtis Hill said Roberts had a “control opinion” on the Louisiana case. ACLU’s lawyers said the 2016 Texas decision, which used a balancing test, “continues to provide the management standard for unnecessary weight.”
One thing became clear after the Supreme Court’s latest split decision: The battles for abortion restrictions, which continue to rage in the lower courts, will be forced to deal with it.
This is already the case in federal appeals disputes over second-trimester bills in Texas and Oklahoma, the Down Syndrome Act in Ohio, the Indiana Parental Notice Act, and the Kentucky Act, which requires abortion providers to have agreements with local hospitals and ambulances.
As litigation continues, lawyers on both sides say a potential trend may emerge. Laws that impose restrictions on clinics, doctors and patients could receive more lenient treatment than stricter bans aimed at banning abortions at different stages of pregnancy.
The question, Aden said, is “where does the chief judge draw the line?”
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