The Supreme Court on Thursday declined to take up several abortion cases, just days after striking down a Louisiana law in the first major abortion decision since President Donald Trump’s two appointees joined the bench.
The justices, citing their decision in the Louisiana case, sent back to a lower federal court two challenges to an Indiana law, signed in 2016 by then-Gov. Mike Pence, that among other restrictions requires an ultrasound and an 18-hour waiting period before an abortion. The 7th Circuit Court of Appeals had previously blocked the restrictions from taking effect, but the Supreme Court is now asking them to reconsider the decision.
Indiana in the cases is also challenging whether abortion clinics have the legal standing to fight such restrictions in court, after the Supreme Court narrowly agreed Louisiana clinics could challenge their state's law.
The justices on Thursday also turned away a case challenging whether governments can shield areas in front of abortion clinics from protests, as well as a separate Indiana challenge over the state's effort to revoke a South Bend abortion clinic's license to operate.
The court's decision to send the Indiana cases back for further consideration suggests justices aren't eager to immediately jump back into the national fight over abortion — and that the Louisiana decision may have far-reaching effects in the battle over the right to terminate a pregnancy.
It also indicates that Chief Justice John Roberts' vote with the court's liberal judges to overturn the Louisiana law earlier this week wasn't the win for abortion rights advocates that many assumed. Roberts said his vote in the case was bound by precedent, since the court in a 2016 case, Whole Woman's Health v. Hellerstedt, rejected a nearly identical Texas law that also required abortion providers to have admitting privileges at local hospitals.
"The liberal justices said courts have to balance burdens versus benefits when ruling on abortion laws," explained Mary Ziegler, a law professor at Florida State University. "Roberts said he didn’t agree, that a law could be completely pointless, but as long as it’s not burdensome it can be constitutional. That departs significantly from the precedent in Whole Woman’s Health and means courts going forward could be more likely to side with the government."
The Louisiana case dealt with another issue — legal standing for abortion providers, who regularly lead challenges to state restrictions on the procedure. Roberts agreed with the court's four liberal justices to find the clinics had standing, but his four conservative colleagues said they would have denied standing, effectively invalidating the lawsuit and potentially dozens like it nationwide.
The ongoing legal fight over Indiana's 2016 abortion restrictions gives the courts another chance to debate the standing question.
The state's restrictions briefly took effect in 2016 before pieces of it were halted by a federal judge months later. The 7th U.S. Circuit Court of Appeals upheld that decision in July 2018, which prompted Indiana's request for Supreme Court review.
The justices spent an unusually long time deciding whether to take up the Indiana law. In May 2019, they issued a decision addressing some pieces of the law without first holding oral arguments. The court upheld a requirement for fetal remains from abortions to be buried or cremated rather than disposed of as medical waste, but it blocked another provision that would have banned abortions based on a fetus' sex, race or disability.
Indiana argues that the contested policy is valid because it pairs two types of abortion regulations the court has separately allowed: a waiting period and an ultrasound requirement. Planned Parenthood and other groups challenging the law say combining those requirements forces women to make two separate trips to an abortion provider, posing a sometimes insurmountable hardship for low-income and rural patients.
Anti-abortion and religious groups who helped fuel Trump’s 2016 campaign said this week's Louisiana decision, while disappointing, underscored the importance of electing Trump to a second term so he could continue remaking the federal judiciary. Echoing that message, Vice President Mike Pence on Twitter said this week's ruling made clear: "We need more Conservative justices on the U.S. Supreme Court.”
But anti-abortion groups said the court’s 5-4 decision will be a motivating factor for progressive voters because it revealed the risk that abortion rights could be whittled away under Trump’s presidency. More abortion-related lawsuits are winding through the courts, including challenges to a recent spate of virtual bans that conservatives hope would trigger a direct Supreme Court challenge to Roe v. Wade.