It is almost identical to a Texas law struck down by the Supreme Court in 2016. Now-retired justice Anthony M. Kennedy joined the court’s four liberals to form a majority in what was its most important endorsement of abortion rights in 25 years.
Trump’s choices for the court, Justices Neil M. Gorsuch and Brett M. Kavanaugh, who replaced the late Antonin Scalia and Kennedy, respectively, were enthusiastically supported by antiabortion groups.
The court could reaffirm or overturn that 2016 precedent, or distinguish it in a way that a restriction deemed unconstitutional in one state is allowed in another.
Leaders on both sides of the issue took news of the court’s action as momentous, even if the questions in the case are narrow.
“The Supreme Court now has a chance in this case to reconsider, reverse, and return Roe v. Wade and the issue of abortion to the American people, which is long overdue,” Students for Life of America President Kristan Hawkins said in a statement. “States should absolutely have the right to pass their own health and safety standards designed to protect women inside abortion vendors.”
Abortion rights supporters turned up the dial as well.
“Access to abortion is hanging by a thread in this country, and this case is what could snap that thread,” Alexis McGill Johnson, acting president of Planned Parenthood Federation of America, said in a statement. “There’s only one reason the court would not strike down the Louisiana law and that is because Justice Kennedy, who voted to protect abortion access just three years ago, has been replaced with Justice Kavanaugh. This is what we’ve warned about.”
It was no surprise the court accepted the case. In February, Chief Justice John G. Roberts Jr. and the court’s liberals entered a stay that kept the law from going into effect. Roberts was a dissenter in the 5-to-3 ruling in the 2016 case (Scalia had died months before) and the reason for his most recent vote remains a matter of speculation.
He may have questioned whether the lower court’s decision to uphold the Louisiana law complied with the court’s precedent, or he could have simply wanted to maintain the status quo until the Supreme Court could consider its merits.
The court’s 2016 decision in the Texas case, Whole Woman’s Health v. Hellerstedt, said the admitting-privileges requirement “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”
Hospitalization after an abortion is rare, all sides agree, and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman getting needed medical care. The court’s opinion said there are numerous reasons doctors might not be able to attain admitting privileges at a nearby hospital, including the fact that it is so rare for their clients to need hospitalization.
But last fall, a panel of the U.S. Court of Appeals for the 5th Circuit upheld the Louisiana law in a 2-to-1 vote, finding factual distinctions between how the restriction played out in Texas and Louisiana.
Judge Jerry E. Smith, writing for the majority, said that the court complied with the Supreme Court’s decision in Whole Woman’s Health by taking a painstakingly close look at the details.
“Unlike in Texas, the [Louisiana law] does not impose a substantial burden on a large fraction of women,” he concluded.
He said that the closing of some clinics in Louisiana, as opposed to Texas, would not dramatically increase driving distances and that it was easier for doctors in Louisiana to procure admitting privileges. He said that “at most, only 30 percent of women” seeking abortions in Louisiana would be affected.
The full 5th Circuit declined to reconsider the panel’s decision, and dissenting judges said their colleagues seemed more intent on giving the Supreme Court a chance to reverse its 2016 ruling than complying with it.
“I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion,” Judge Stephen A. Higginson wrote in his dissent. “The majority would not, and I respectfully suggest that the dissenters might not either.”
Both sides in the Louisiana case had requested the court’s intervention.
“Louisiana has tried everything under the sun to decimate access to abortion care,” said Kathaleen Pittman, clinic administrator at Hope Medical Group, one of the plaintiffs. “The situation here is already dire and this law would be the last straw for most of the remaining clinics. We’re hopeful that the court will recognize how devastating this law would be for women in our state.”
Louisiana Attorney General Jeff Landry (R) had also asked the court to review the decision. He wants the justices to decide that abortion providers don’t have the legal standing to challenge laws such as the one the Louisiana legislature passed.
“The evidence of Louisiana abortion clinics’ poor safety records, inadequate credentialing practices, and questionable efforts to undermine health and safety regulations shows that the abortion clinics’ interests are directly adverse to the interests of Louisiana women,” Landry said in a statement. “Incompetent and unsafe providers should not be allowed to challenge health and safety standards designed to protect women from those very providers.”
The case is June Medical Services v. Gee.