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A turning point in America’s half-century-long abortion war?

On March 4 the Supreme Court will hear oral arguments in a case in which 20 states have joined in an amicus brief urging the Supreme Court to uphold a Louisiana law restricting abortion.

(CNS file photo/Nancy Phelan Wiechec)

“Chances are that abortion rights cases will look very different very soon.” That is the cautious assessment of Thomas H. Fisher, solicitor general of Indiana—one of 20 states joining in an amicus brief urging the Supreme Court to uphold a Louisiana law restricting abortion. A less cautious view is that this case has the potential to be a turning point in America’s half-century-long abortion war.

The Supreme Court on March 4 will hear oral arguments in the case, June Medical Services, LLC v. Gee. June Medical Services operates an abortion clinic in Louisiana and is joined in its suit by two anonymous doctors who do abortions. Gee is Dr. Rebekah Gee, formerly secretary of Louisiana’s health and hospitals department.

At issue is a law passed by the state legislature in 2014 requiring that a doctor performing abortions have admitting privileges at a hospital no more than 30 miles away. The court’s decision is expected before its present term ends in late June.

Louisiana argues that the law is a reasonable way to protect women who undergo abortions. Opponents call it a not-too-subtle attempt to make abortions harder to get, thereby imposing, in the Supreme Court’s language in an earlier case, an “undue burden” on women seeking something the court says the Constitution gives them a right to.

The case has generated intense interest, with more than 80 friend of the court briefs had been filed a month before the oral argument. Supporters of abortion fear it will pave the way for even tighter restrictions on abortion and eventually to the undoing—in fact, if not necessarily in law—of Roe v. Wade, the Supreme Court’s original 1973 decision legalizing abortion. Opponents of abortion hope it does exactly that.

A district court, citing prior Supreme Court decisions, held that the admitting privileges law is unconstitutional, but the U.S. Court of Appeals for the Fifth Circuit upheld it, saying it “promotes the wellbeing of women.” Posing a major obstacle to the law is a 2016 Supreme Court decision that overturned a virtually identical Texas statute.

But Louisiana contends there are significant differences, the most significant—though unspoken—being the makeup of the Supreme Court. Since 2016, two new justices have come on board—Neil Gorsuch, replacing the late, pro-life Antonin Scalia, and Brett Kavanaugh, succeeding pro-choice Anthony Kennedy.

The votes of four justices are needed to get a case onto the Supreme Court’s docket. June Medical Services almost received the votes of Gorsuch and Kavanaugh, as well as Justices Clarence Thomas and Samuel Alito. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan no less certainly were opposed.

That leaves Chief Justice John Roberts—and in 2016 he opposed overturning the Texas statute that is now described as virtually identical to the Louisiana law. If Roberts still holds that view, that adds up to a five-justice majority to uphold the statute.

There is, however, another possibility: the same five justices could simply dismiss the case on the grounds that the abortion provider and the anonymous doctors, who claim to represent the interests of hypothetical women seeking hypothetical abortions, lack legal standing to sue.

Although prolifers would be disappointed, the justices might consider this a prudent outcome in an election year. So might others who favor an incremental approach to chipping away at the structure of pro-abortion legal precedent put in place by the friends of abortion since Roe v. Wade. Whatever happens, Solicitor general Fisher is right—things are changing at the Supreme Court.


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About Russell Shaw 203 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, and, most recently, Eight Popes and the Crisis of Modernity.

3 Comments

  1. Praise God for prolife folks in Louisiana.
    From what I’ve read, Louisiana is the most “prolife” state in the US. It also was as far as I know, the only state that did not adopt eugenic sterilization laws back in the day. And that was largely due to lobbying from Louisiana Catholic groups.
    I hope the next thing La. will be known for is being the state that helped overturn Roe vs Wade.

  2. Pro “Choice” people. Do you really want to go to the place, we all are going to, following thousands of people you sent there early?

  3. “Supporters of abortion fear it will pave the way for even tighter restrictions on abortion and eventually to the undoing—in fact, if not necessarily in law—of Roe v. Wade, the Supreme Court’s original 1973 decision legalizing abortion.”

    Apparently, I am to be the lone voice in the wilderness, but it is impossible from a moral or Constitutional perspective for abortion to be “legalized.” The Supreme Court is not a law-making body-it decides cases-and because abortion is not mentioned in the Constitution (which only applies to the federal government), it is a state issue (by the 10th Amendment), and can’t be reviewed or “struck down” by the Supreme Court on Constitutional grounds. Furthermore, of course there can be no just “law” passed (by any government) which allows the direct killing of an innocent human life. The right to life is an inalienable natural right. Any “law” which allows the abridgment of this natural right violates the natural law and therefore is unjust.

    Roe vs. Wade was a piece of legal sophistry, and was an evil, unjust, and false judgment. Even legal scholars who support its result, have admitted that it was a bad decision. That it has passed muster as a perfectly valid decision (which somehow has “legalized” abortion by “striking down” state laws against abortion) in the public square exposes the general ignorance of the population and the tacit complicity of those who should know better and either do not know, are silent when they shouldn’t be (or their voices are being excluded by the mainstream media), or secretly support the wickedness.

    One has to realize that an unjust “law” is not a law. Human positive law is a specification of and can’t directly contradict the natural law.

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