On Monday morning, Chief Justice John Roberts joined the court’s liberals yet again to strike down a restrictive Louisiana abortion law that could have left the state with a single clinic.
This case was one of the most-watched items on the docket this term for a reason. It was the first ruling on abortion since President Trump appointed two new justices to the court, which meant abortion-rights opponents were optimistic that a new conservative majority might be willing to undo past decisions on abortion rights — even though the Louisiana law was basically identical to a Texas restriction that was struck down by the court in 2016. The laws banned doctors from providing abortions unless they had admitting privileges at a local hospital.
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It turned out this was a bad bet. Roberts ultimately wasn’t willing to backtrack on what the court had so recently decided. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons,” he wrote in a separate opinion from the majority. “Therefore Louisiana’s law cannot stand under our precedents.”
But this could turn out to be only a temporary setback for anti-abortion activists. Roberts made it clear that he still thinks the 2016 ruling was incorrect. This means abortion rights will likely be back on the Supreme Court’s docket soon, and it’s very possible that in a future case, Roberts will be willing to uphold other restrictions that could severely limit access to the procedure.
As the map below shows, states have passed plenty of different types of restrictions already.
Today’s ruling means that the center of gravity in the abortion debate will likely shift away from requirements placed on clinics — particularly those that are similar to the ones struck down in Texas and Louisiana. According to the Guttmacher institute, a research organization that supports legal abortion, 14 states, including Louisiana and Texas, have passed admitting-privileges restrictions since 2011. The Supreme Court striking those laws down is a significant victory for abortion-rights supporters, because those types of restrictions were very onerous for doctors to comply with. A ruling in favor of Louisiana in this case would have almost certainly made it even harder to get an abortion in the state — and perhaps also in other parts of the country.
But as you can see in the chart above, there are still hundreds of other laws that limit abortion rights on the books. And a few kinds of laws that several Republican-controlled legislatures have recently passed could turn into the next big front in the abortion wars.
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One such category includes bans on a specific second-trimester abortion procedure that involves dilating the patient’s cervix and removing the fetus in pieces (on the chart, these are represented by the blue dots — the category for restrictions on a certain type of abortion or for specific reasons). And according to Mary Ziegler, a professor at Florida State University College of Law and the author of “Abortion and the Law in America: Roe v. Wade to the Present,” anti-abortion advocates could argue that these bans are in line with a Supreme Court case decided in 2007, where the court upheld a federal ban on another commonly used method of second-trimester abortion.
Another possibility is that anti-abortion opponents will start to focus on laws that ban abortion solely for specific reasons — like when the fetus has genetic abnormalities, or if the goal is to ensure a child of a specific sex or race (these are also represented by blue dots on the chart). The Supreme Court sidestepped ruling on one of these bans last year, leaving the possibility that they could return to the court in the future.
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There are also many outright bans on abortion at different stages of pregnancy — including laws like the one passed earlier this month in Tennessee, which would prevent a woman from obtaining an abortion starting around the sixth week of pregnancy.1
As I wrote last year, these types of bans are increasingly popular in the anti-abortion movement. But they’re riskier propositions from a legal perspective, because they directly challenge the court’s original precedent in Roe v. Wade — and they’re also not really in line with most Americans’ views about when abortion should be legal. That is, most Americans think Roe v. Wade should not be reversed, and many think abortion should be legal in the first trimester.
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So another option that could be more palatable — both to Roberts and the general public — is a set of restrictions that land closer to the threshold for fetal viability, which is around 22 weeks. That wouldn’t necessarily involve a full-scale reversal of precedent, which Roberts seems reluctant to consider at this point. For instance, in today’s case the court brushed aside anti-abortion advocates’ request to revisit several decades of precedent that allows abortion doctors to sue to protect or expand abortion rights on behalf of their patients, rather than forcing patients themselves to sue.
It’s hard to predict which of these restrictions are most likely to end up at the Supreme Court or how quickly that would happen. But Leah Litman, a law professor at the University of Michigan, said that while Roberts’s emphasis on maintaining precedent may prompt anti-abortion advocates to change their strategy, some of these other laws could get a warmer reception from the chief justice. “There are just so many varieties of restrictions on abortion that the Supreme Court hasn’t definitively weighed in on,” she said. “This kind of ruling is an invitation to bring them different kinds of restrictions.”