A Supreme Court Abortion Case That Tests the Court Itself by Linda Greenhouse

'What will access to abortion look like under the new conservative majority?

Under the rules that normally govern the American judicial system, the Louisiana abortion law at the center of a case the Supreme Court added to its docket last week is flagrantly unconstitutional. My goal in this column is to make visible not only the stakes in the case but also Louisiana’s strategy for saving its law, the first of a wave of anti-abortion measures to reach a Supreme Court transformed by the retirement of Justice Anthony Kennedy and the addition of two justices appointed by President Donald Trump.

The case, June Medical Services v. Gee, asks the court to decide whether states can prohibit doctors from performing abortions unless they have admitting privileges at local hospitals. It presents each side with an obvious challenge. The challenge for Louisiana is that the court answered precisely that question three years ago in Whole Woman’s Health v. Hellerstedt, declaring that an identical law in Texas imposed an unconstitutional burden on access to abortion. The court’s holding was so definitive that the attorneys general of Alabama and Tennessee almost immediately stopped defending their states’ admitting-privileges laws.

But Louisiana persisted, and the conservative United States Court of Appeals for the Fifth Circuit went rogue. It upheld the Louisiana law by disregarding the findings of the federal district judge who had struck it down after a six-day trial, by mischaracterizing what the justices did in Whole Woman’s Health and by drawing phony distinctions between Texas, where the regulatory onslaught has left the state with 20 abortion clinics, and Louisiana, which now has three clinics and will be left with one if the law goes into effect.

So the state, and any justices inclined to take its side, faces a glaring rule-of-law problem, as a bipartisan group of former federal judges and senior Justice Department officials observed in a friend-of-the-court brief they filed in support of the clinic that is appealing the Fifth Circuit ruling. “Lower courts are bound by the decisions of this court,” they told the justices, adding, “That fundamental principle is essential to establishing and maintaining the rule of law.” The signers of this brief include Charles Fried, a former solicitor general of the United States, who in 1989 on behalf of the George H.W. Bush administration urged the Supreme Court to overturn Roe v. Wade.'>>>

https://www.nytimes.com/2019/10/10/opinion/supreme-court-abortion.html?