Mary Margaret Olohan, DCNF
Chief Justice John Roberts may have sided with liberal justices in an abortion case announced Monday, but a footnote in his opinion has sparked anxiety among some abortion advocates.
The case involved an abortion provider challenging a 2014 Louisiana state law called the Unsafe Abortion Protection Act, which required abortion providers to have admitting privileges in a hospital within 30 miles of the abortion facility. Admitting privileges allow a woman to go directly to the hospital if she were to need urgent care following an abortion. Louisiana’s law is similar to a Texas law the court struck down in 2016.
Opponents said the Unsafe Abortion Protection Act would hinder and potentially eliminate abortion access in Louisiana. Pro-life advocates said the law would protect women from unsafe or unhygienic abortion clinic practices.
Roberts sided with liberal members of the Court in June Medical Services v. Russo in the close 5-4 ruling, writing that “the Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons.”
But Roberts also included a footnote noting that the “validity of admitting privileges law depend[s] on numerous factors that may differ from state to state.”
While conservatives and pro-lifers heavily criticized Roberts’ ruling, some abortion advocates also took issue with it. The footnote could spur other states to pass similar legislation to the contested Louisiana law, keeping abortion and Roe v. Wade in the national spotlight, these advocates suggest.
“This was a huge victory for the Louisiana clinic, or at least a huge defeat averted, but the chief justice’s opinion is a chilling sign for the future of abortion rights,” said Joshua Matz, a Supreme Court expert and Kaplan Hecker & Fink LLP partner, to CNN.
Center for Reproductive Rights attorney Julie Rikelman, who argued against the Unsafe Abortion Protection Act before the Supreme Court, added that Robert’s opinion was “obviously concerning for us.”
“Roberts clearly did say that this law is unconstitutional, that it imposes an undue burden to abortion access in Louisiana,” Rikelman told CNN, though she added: “What the other parts of the opinion will mean will play out in the coming years. We think the opinion did muddy the waters a bit, and so will lead to more litigation rather than less.”
Americans United for Life President Catherine Glenn Foster told the Daily Caller News Foundation that Roberts was “unequivocally incorrect“ in his ruling on the case — which she said “leaves the door open” to future review.
“Though the Chief Justice lists multiple factors that should be considered when addressing health and safety protections related to abortion, he entirely neglects to consider them,” she said. “The Court undoubtedly leaves the door open to uphold future health and safety protections. We need bravery on the United States Supreme Court. We need Justices who understand that the most important role of law is to protect human life – all human life.”
The ruling will “have to be sorted out by lower courts in the future,” James Bopp Jr., general counsel for the pro-life National Right to Life, told CNN.
“You can read it, you know, a half a dozen different ways,” he said. “So it’s like throwing out a bunch of confetti — who knows what it means.”