In arguments over the biggest abortion case to hit the Supreme Court in years, the justices seemed deeply divided — and Chief Justice John Roberts, the closest thing on the bench to a swing justice, gave no clear signal about how he plans to vote.
The case, which attorneys argued in front of the court Wednesday, centers on the constitutionality of a Louisiana law that requires abortion providers to have admitting privileges at a nearby hospital. If the restriction goes into effect, all but one of Louisiana’s abortion clinics are set to close.
But the impact of June Medical Services v. Russo will likely be felt far outside of Louisiana. The case doesn’t directly challenge Roe v. Wade, which abortion opponents have been gunning to overturn since it legalized abortion nationwide in 1973. But advocates for abortion rights say that if they lose, conservatives could ram through restrictions that would close clinics and eradicate access to legal abortion across the United States.
While the justices can rule anytime, a decision in June Medical Services v. Russo isn’t expected until June.
When Julie Rikelman, who’s representing the abortion clinic that sued over the Louisiana law, addressed the justices, she tried to frame the case as a reflection of the court’s need to preserve its legacy. Throughout arguments, she repeatedly tacked on the fact that in 2016, the Supreme Court had struck down a Texas law that’s essentially identical to the Louisiana restriction, for making it unconstitutionally difficult for women to get abortions.
“This case is about respect for the court’s precedent,” said Rikelman, who’s senior litigation director at the Center for Reproductive Rights.
That focus on precedent is likely a play for sympathy from Roberts, who has long been concerned with preserving the Supreme Court’s legitimacy as an apolitical institution. Roberts is also the closet thing the bench has to a swing justice: Though he’s historically conservative, he voted last year with the liberal wing of the court to temporarily block the Louisiana abortion restriction from taking effect.
Roberts seemed struck by the question of whether the ruling in the 2016 Texas case, Whole Woman’s Health v. Hellerstedt, should apply to Louisiana, or if abortion rights advocates always need to sue to determine whether a state’s admitting privileges law is unconstitutional. Louisiana has argued that Whole Woman’s Health shouldn’t matter in this case, because the facts on the ground in Louisiana regarding the availability and regulation of abortion are different enough.
A ruling in Louisiana’s favor would likely force abortion rights supporters to file lawsuit after lawsuit, a draining practice that could leave more abortion restrictions intact.
Roberts asked both Rikelman and Murrill, who argued for Louisiana as its solicitor general, whether the constitutionality of laws like Louisiana’s should be decided on a state-by-state basis. Toward the end of the arguments, Roberts suggested that he thought they shouldn’t be.
“The law varies from state to state, but why do you look at each state differently if the benefits of the law — they’re not going to change from state to state,” Roberts told Jeffrey Wall, U.S. principal deputy solicitor general, who also argued on Louisiana’s behalf.
The case was also justices Neil Gorsuch and Brett Kavanaugh’s first chance to hear arguments in an abortion case. But Gorsuch said nothing during arguments. Justice Clarence Thomas, who’s famously silent most of the time anyway, also kept quiet.