What Does a Racist Louisiana Law Have to Do With Abortion Rights?

The Supreme Court of the United States has begun ruling from home on Monday, March 23, 2020 due to the outbreak of COVID-19 that, according to a recent death toll, has killed more than 50.000 people in the US. Although many eyes are staring at the current crisis, I believe it’s worth taking a closer look at how these rulings will shape the legal and political scenario in the Country.

Among the first cases discussed before the Supreme Court last week, my attention was caught by the case Ramos v. Louisiana, argued on October 7, 2019, and decided on April 20, 2020. Evangelisto Ramos was convicted of second-degree murder in 2016 by a Louisiana court. However, the jury’s decision was not unanimous. Although the Sixth Amendment, which binds the states through the Fourteenth, guarantees the rights to a fair trial and, therefore, the right to be convicted only by a unanimous jury, two states (Oregon and Louisiana) had allowed juries to convict a defendant without unanimity until 2016. If you are wondering where racism fits into this, let me clear it up for you: the rationale behind the 1898 Louisiana law was to allow a few African Americans to serve on jury duty but not be decisive in the case of conviction or acquittal. The idea was that even if a couple of black jurors decided to acquit the defendant, their stance would not influence the outcome of the trial. As it appears clear, the racist legacy left by the Jim Crow Laws is still visible in some southern legal orders. Last Monday, the Supreme Court was asked to decide on the constitutionality of the Louisiana law.

What was interesting about Ramos v. Louisiana was not the ruling itself that, as expected, struck down the unconstitutional statute, but rather the dissenting argument made by one particular member of the Supreme Court: Justice Elena Kagan. After being appointed by former President Barack Obama in 2010, Justice Kagan has often advocated for liberal and progressive causes. However, In Ramos v. Louisiana, she proposed to follow a 1972 precedent (Apodaca v. Oregon) that allowed non unanimous verdicts. Why would a liberal justice think twice before striking down a racist unconstitutional law? Why would a forty-eight-year-old precedent matter so much to Justice Kagan? The answer lies ahead of us. Justice Kagan is taking a long shot to ensure that the court will assume a defined attitude towards the notion of adhering to precedents and stare decisis. Given the new conservative majority in the Supreme Court, Justice Kagan fears that many achievements of the past will be overturned. In other words, she is attempting to implement a strategy that in the long run might preserve landmark cases, such as Roe v. Wade that legalized abortion across the Country in 1973. Adam Liptak, a graduate of Yale Law School who works as a reporter for the New York Times, summarized this plan as follows:

“I think the audience Justice Kagan was speaking to was not her liberal colleagues, but her conservative ones saying, I’ll come along with you [..] on this one. And I’m hopeful that when the day comes [..] you too will respect precedent.”

Indeed, the Supreme Court is expected to rule on the constitutionality of another Louisiana Law in the upcoming case June Medical Services, LLC v. Russo. The law in question requires doctors who perform an abortion to have admitting privileges at a local hospital. In other words, the statute would only allow one doctor and one clinic to perform abortions across the entire state of Louisiana. The lawmakers, known for their conservative and pro-life rhetoric, passed this legislation with the purpose of making it practically impossible for women to get an abortion. Louisiana is not the first state to draft and approve a statute that challenges Roe v. Wade. Alabama, Arkansas, Georgia, Indiana, Kentucky, Mississippi, Missouri, North Dakota, Ohio, and Utah have approved or attempted to approve similar legislation. Many pro-life activists have been patiently waiting for this moment. Justice Kagan knows this and wants to play her cards right in order to influence her pro-life colleagues towards a more liberal decision in line with Roe v. Wade.

Regardless of your take on this debated topic, the real question here is whether the strategy shown in court by Justice Kagan will convince any of her conservative colleagues to respect the precedent and safeguard Roe v. Wade. If not, the overruling of the 1973 landmark case will demonstrate once more in US history how influential the Supreme Court is in paving the way for social and political change, a change that represents a huge step back of forty-eight years.

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