This morning, the United States Supreme Court struck down a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals. The Court was guided by Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791 (1992), and Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, 136 S.Ct. 2292 (2016), in finding that the Louisiana law was unconstitutional, noting that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore constitutionally invalid.” June Medical Services L.L.C. v. Russo, 591 U.S. ___ (2020), (slip op., at 1). (internal citations omitted). This standard requires courts to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. Id. (slip op., at 2). The Court explained that the district court rightfully found that the law would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain a safe, legal abortion and imposing substantial obstacles on those who could.

Although the makeup of the Court has become more conservative since the decision in Whole Woman’s Health, Justice Roberts, who dissented in Whole Woman’s Health, concurred in the judgment here, because the Louisiana law imposed a burden on access just as severe as that imposed by the nearly identical Texas law invalidated in Whole Woman’s Health and thus could not stand under the principal of stare decisis.

It is unclear how the Court’s conservative justices would address other unnecessary restrictions on abortion in the future, where the facts and the law at issue differ more from those here and in Whole Woman’s Health. However, while Justice Roberts dissented in Whole Woman’s Health, where a law places “a substantial obstacle in the path of women seeking a previability abortion” it is still invalid. Id. (slip op. Robert’s C.J. concurring in judgment, at 11). (internal citations omitted).

Authored by Caroline Hyatt, Gerhardstein & Branch Attorney

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