An unprecedented leak from the U.S. Supreme Court as an apparent leftist pressure tactic portends Louisiana coming close to outlawing abortion, and it may come closer yet.
This week, a majority opinion apparently authored by Assoc. Justice Samuel Alito became public. Dated nearly three months ago, it addresses a case over a Mississippi law extremely similar to one on Louisiana’s books that prohibits abortion after 15 weeks gestation except in emergency situations. Neither are operative, but are designed to if the U.S. Constitution is amended to give states the right to restrict abortion past Roe v. Wade standards or the Court alters or abandons that case.
The opinion, if issued which likely would be at the end of June, would chuck Roe. The wording attributed to Alito comprehensively exposes Roe’s and its successors’ constitutional infirmities, and appears to have support of at least four other court members, those appointed by Republican presidents, but not Chief Justice John Roberts.
How this all plays out illuminates the Byzantine processes of the Court. The senior-most justice on the winning side writes or assigns the opinion, but Alito only is the third-most. Roberts as chief justice automatically has first crack, but on such a huge issue the chief would want to write the opinion himself, so likely he did not initially vote with the majority, which would align with rumors that he wanted to find a way to retain Roe but also the Mississippi law.
Next in seniority is Assoc. Justice Clarence Thomas, but Thomas typically more actively pens dissents or concurrences from perhaps the most originalist worldview on today’s Court. Alito may have gotten the job in an attempt to draw a concurrence from Roberts.
Regardless, this breach widely is viewed as the work of one of the law clerks from the apparent dissenters – the three appointees of Democrats – ideologically committed against the decision and willing to violate Court rules and norms to try to start a public relations campaign in the hopes of cracking the seeming majority. That is an extreme long shot, as all of that majority have experienced withering mainstream media coverage of their personal lives and/or nominations and have become steeled against this kind of pressure.
So, it will go the way of the supposed draft, with the only question being the size of the majority. That would initiate enactments into Louisiana statute severely restricting abortion.
While the challenged law permits abortion only up to 15 weeks instead of 24, both states have another version that essentially sets the limit at six weeks because that typically is when an unborn human’s heartbeat can be detected. Since the decision throws out Roe completely and thereby returns jurisprudence to the standard of a half-century ago that states, as part of their general police power, regulate abortion in its entirety, in Louisiana abortion would become prohibited after six weeks, with exceptions.
That quickly could go to zero. SB 342 by Democrat state Sen. Katrina Jackson would prohibit all abortions unless to deal with an ectopic pregnancy, save the life of a potential multiple-birth unborn, save the life of the mother, or prevent life-threatening physical damage to the mother, with additional penalties against the people involved (but not the mother) if it occurs after 15 weeks.
This probably would obviate the need for HB 800 by Republican state Rep. Larry Bagley that creates a tort regime similar to that in Texas that discourages abortion. It also could pass, but if SB 342 does, HB 800 contains language sorting out applicability of abortion statutes that would allow the two to co-exist (as well as with R.S. 40:1061, the Human Life Protection Act), with SB 342 as well permitting local governments to enact measures as long as these are at least as strict as the bill. The same applies to a few other bills that in essence would become duplicative.
Democrat Gov. John Bel Edwards could try to spoil the party. Increasingly revealing his social leftism, despite calling himself pro-life, he might approve (as he was when signing that legislation in 2019) of six weeks but not no weeks. But with this recent chastisement in having a veto overridden and likely healthy chamber supermajorities for SB 342 (it passed the Senate 29-3), whatever private qualms he could have likely he would suppress and sign it into law.
More than ever, society needs something like SB 342 to safeguard life, regardless of the circumstances of its creation as the value of a life shouldn’t depend on its origins. The desirable amount of protection finally may be achieved in a couple of months, at least in Louisiana.