The Supreme Court could begin to reorder its abortion rights jurisprudence Wednesday, as a conservative majority reinforced by President Trump’s two nominees considers a restrictive law from Louisiana.
The court is examining whether the state’s 2014 law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals unduly burdens women’s access to abortion. Practitioners claim, and a federal judge agreed, that the law could force two of the state’s abortion clinics to close, leaving only one doctor to perform the procedure.
Abortion providers say the case will be a test of the court’s commitment to honor precedent: The law is practically 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, 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.
Louisiana says its law is intended to protect women’s health and requires abortion providers to get the same admitting privileges as those required at other ambulatory surgical centers. It is also asking the court to do away with a decades-old precedent that allows abortion providers to challenge laws on behalf of women.
Besides Trump’s nominees, the most closely watched member of the court will be Chief Justice John G. Roberts Jr. He was a dissenter in the 2016 case and has never in his tenure found that an abortion restriction went too far.
But in February 2019, he sided with the court’s four liberals in an emergency motion that kept the Louisiana law from going into effect.
Roberts gave no reason for his vote. He may have questioned whether an appeals court 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.
Another change at the court: While the Justice Department in 2016 urged the court to strike down the Texas law, Trump administration lawyers will argue Louisiana’s should be left in place, even if it means overturning the opinion in the Texas case, Whole Woman’s Health v. Hellerstedt.
The court’s majority in that decision 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.
A Louisiana federal judge held a six-day trial on the law and agreed with abortion providers that the court’s decision in Hellerstedt meant the law was unconstitutional.
But a panel of the U.S. Court of Appeals for the 5th Circuit — the same court that had upheld the Texas law — disagreed. The panel on a 2-to-1 vote found 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 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.
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.”
The Louisiana case is June Medical Services v. Russo.
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