The Louisiana Unsafe Abortion Protection Act law was before the Supreme court this week. Yes, another abortion case is before the Supreme Court (SCOTUS). The high court heard oral arguments Wednesday in the June Medical Services v. Russo. The case involves a Louisiana law. The law requires doctors performing abortions at clinics to have admitting privileges at a nearby hospital.
The issue is whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.
In 2016, the Supreme Court struck down a Texas law requiring doctors performing abortions in that state to have the right to admit patients at nearby hospitals. In the case, Justice Anthony Kennedy joined the court’s four leftist justices. The majority conclusion was the law made it harder for women to obtain abortions. Justice Kennedy is now retired. The law’s fate seems likely to hinge on the vote of Chief Justice Roberts or Justice Kavanaugh.
This dispute centers on the constitutionality of the 2014 Louisiana Unsafe Abortion Protection Act law. This state law requires doctors who perform abortions in Louisiana to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. In 2018, a federal appeals court rejected a challenge to the law, concluding that it did not “impose a substantial burden on a large fraction of women.”
Standing… can you even bring suit?
The challengers were the doctors who perform abortions and an abortion clinic. They asked the justices to temporarily bar the state from enforcing the law. They asked for relief until they could file a petition for review of the lower court’s decision. Subsequently a divided court agreed to stay the lower court’s ruling. Chief Justice John Roberts joined the court’s four more leftist justices voting to stay the 5th Circuit’s ruling. In April, the challengers filed their petition for review which SCOTUS granted.
Arguing for the abortion providers Julie Rikelman told the justices “this case is about respect for the court’s precedent.” The Louisiana admitting-privileges requirement was “expressly modeled on” the Texas law. Scotus struck down that law in 2016. She continued this law “will do nothing for women’s health… Nothing has changed… that would justify such a legal about-face” from the court’s 2016 ruling.
Justice Alito asked whether her clients had standing, legal right to challenge the Louisiana law. Should a plaintiff be able to sue to protect the rights of others when there is a conflict between the plaintiff’s interests and the interests of the individuals whose rights the plaintiff seeks to protect? Rikelman responded that a plaintiff should be able to sue when she is “directly regulated” by the law at issue, Alito was incredulous.
Pushback with an assist
Rikelman continued arguing the state had waived its ability to challenge her clients’ right to sue. She received an assist from Justice Ginsburg. Ginsburg observed that the state hadn’t raised the issue until its cross-petition in the Supreme Court. The abortion providers “might have joined a patient or two” if the state had flagged the question earlier, Ginsburg indicated.
Justice Stephen Breyer too agreed the abortion providers had standing to sue on behalf of their patients. Breyer said in eight cases SCOTUS has allowed abortion providers to sue on behalf of their patients. Why, he asked the deputy U.S. solicitor general who argued supporting Louisiana, should we “depart from what was pretty clear precedent?” Wall answered the Supreme Court has “never signed off on” a right to sue for abortion providers. He pointed out the providers in this case have an actual conflict of interest.
Does Whole Woman’s Health v. Hellerstedt apply?
Chief Justice Roberts returned to the question of how the justices should apply their 2016 decision. He asked Rikelman: Is the inquiry under Whole Woman’s Health v. Hellerstedt a factual one that has to be conducted state by state? Roberts posited, the district court would examine the availability of doctors and clinics in a particular state. The results could be different in different states.
Roberts’ view on this question could be important. If he concludes that the Whole Woman’s Health inquiry is a factual one it determines the logic of the decision. If that is conducted state by state, it could allow him to find some daylight between the Louisiana and the Texas law.
Rikelman acknowledged that the burdens of a law may vary according to the law at issue. She argues an admitting-privileges law has no benefits. Therefore she reasons it is more likely to be a burden in every state.
Kavanaugh asked Rikelman: If the admitting-privileges law did not have any effect. If all the doctors could get admitting privileges would the law still be an undue burden and therefore unconstitutional? Rikelman conceded that such a case would be very different.
Roberts had a similar question about how to apply Whole Woman’s Health for Louisiana’s solicitor general. Do you agree that a court’s inquiry into the benefits of an abortion law will be the same in each state? Louisiana disagreed. A state could show that a law has more benefits depending on the state.
Much of the rest of the argument was spent discussing Louisiana’s admitting-privileges law. Does it actually have any benefits? Have the state’s abortion providers really made an effort to obtain privileges at nearby hospitals? Ginsburg characterized the admitting privileges requirement as “odd.” She argued for the abortion providers that most abortions don’t result in any complications. She further suggested that even if a woman needs to go to a hospital, she will go to the hospital that is closest to her home, not the hospital closest to the abortion clinic.
The federal government pushed back on Ginsburg’s contention the 30-mile requirement serves no purpose. He asserted all admitting-privilege requirements have some geographical limit. Even if there was no evidence in the Texas case that women who needed to be hospitalized were transferred to the hospital from the clinic. Such evidence does exist in this case “even if we don’t know how often it happens…”
Justice Kagan posited that the admitting privilege requirement does not guarantee doctors who perform abortions are qualified to do so. In Whole Woman’s Health v. Hellerstedt SCOTUS held the state cannot say it is imposing an admitting privilege requirement for credentialing reasons if hospitals are denying applications for admitting privileges for other reasons. The examples given were: doctors not admitting enough patients to the hospital or doctors perform abortions.
The government pushed back with, in a case like this, when the law has not yet gone into effect, all the challengers “ought to have put their applications where their mouths are…” They should have at least applied for admitting privileges before going to court to block the law. That way the court could know for certain “whether they really can’t get” admitting privileges. Louisiana was even stronger. She told SCOTUS there is evidence the challengers who did apply for admitting privileges “sabotaged their own applications.”
Alito made reference to one doctor suggesting it would be against the doctor’s own interests to make a “super effort” to get admitting privileges. He observed, “… he’d be defeating his own claim.” Said physician has previously had admitting privileges at a hospital in Shreveport didn’t apply for privileges again. It was a Catholic hospital. The presumptions is it was his belief he would not be able to obtain them. Another doctor did obtain admitting privileges at that hospital.
The justices will meet to vote on the case later this week, and a decision is expected by summer. The Louisiana Unsafe Abortion Protection Act law was before the Supreme court posing valid new questions.