One tragedy of Roe v. Wade is that it has turned any state regulation of abortion into a judicial controversy. And even the mildest regulation gets presented as something that threatens all access to abortion. The Supreme Court agreed to enter this thicket again on Friday by accepting Gee v. June Medical Services.
Abortion providers are challenging a Louisiana law that requires doctors who perform abortions to have admitting privileges at a nearby hospital. The plaintiffs argue the Louisiana law is similar to a Texas law the Court struck down in 2016 and that it would force the closure of every abortion clinic in the state save one. The Texas case, Whole Woman’s Health v. Hellerstedt, was decided 5-3 after Antonin Scalia had died and with Anthony Kennedy in the majority.
The Louisiana law does not directly challenge the constitutional right to abortion that Roe declared. But the Fifth Circuit Court of Appeals upheld the state regulation, which abortion-rights supporters fear could chip away at Roe by opening the door to increasing state restrictions and regulations.
This is the first abortion case for the Court since Justice Kennedy retired, and the votes of only four Justices are required to take a case. Perhaps the four liberals want to see where new Justices Neil Gorsuch and Brett Kavanaugh come down on abortion regulation. Or perhaps the conservative Justices took the case because it is the kind of modest regulation that can be upheld without overturning core abortion precedents.
The decision is politically fraught as it will likely be handed down next year in the heat of a presidential campaign. But Gee is an ideal case for the Court to hear if the new Justices see the constitutional space to widen, step by incremental judicial step, the ability of the political branches to legislate the practice of abortion.
Though most of the media attention has focused on states that have passed laws restricting abortion—including an Alabama law that would ban nearly all abortions—states such as New York, Illinois, Rhode Island and Vermont have been busy moving in the opposite direction, liberalizing their abortion laws to guarantee abortion rights if Roe is overturned.
— The Wall Street Journal