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The high court struck down a nearly identical law in 2016, but some say that the court’s new conservative majority could allow a Louisiana law to stand.
The Supreme Court will hear arguments in a major abortion case on Wednesday that could result in reduced access to the procedure in Louisiana—and eventually many other states.
The justices will consider a Louisiana law that requires abortion providers to have admitting privileges at local hospitals. Reproductive health advocates say if the law takes effect, only one of the state’s three clinics could remain open, and at that clinic, only one physician would be licensed to perform abortions.
The case is a second consideration of this issue for the high court, as the Louisiana law under scrutiny is a near-exact replica of a Texas requirement the justices considered in 2016, when the court determined that law was unconstitutional.
The fear of clinic closures in Louisiana builds off what happened in Texas before the law was struck down—that admitting privileges requirement took effect in November 2013 and by July 2014, 21 out of the 41 abortion clinics in the state had closed. By October 2014, only seven abortion providers had obtained the privileges required to continue operation.
There are similar laws on the books in eight other states, although all but two have been blocked by courts.
The Louisiana case is the first major state abortion restriction to be heard by the Supreme Court since Justices Neil Gorsuch and Brett Kavanaugh were appointed by President Trump, who are both expected to bring a conservative perspective to the issue. Kavanaugh replaced former Justice Anthony Kennedy, who was often a swing vote on abortion cases.
Advocates on both sides of the issue see this case as a potentially serious challenge to Roe v. Wade, the landmark decision establishing a woman’s right to an abortion. “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, said last fall.
When the hospital admitting requirement, which requires a doctor have privileges at a hospital within 30 miles of the abortion clinic, was first passed by Louisiana lawmakers in 2014, proponents argued it was about safeguarding the health of patients. "Members, this is about the safety of women," said then-Rep. Katrina Jackson, a Democrat from Monroe who sponsored the measure. Jackson now serves in the state Senate.
Louisiana Attorney General Jeff Landry’s office echoed that argument in defense of the law before the Supreme Court. "There is no dispute that doctor competency matters, even in abortion practice, and that doctors who perform abortions in Louisiana should be adequately credentialed," the state wrote to the court. "Nor is there any dispute that, absent Act 620, Louisiana hospitals credential doctors more thoroughly than Louisiana abortion clinics—which barely credential them at all."
According to Louisiana law, all physicians who provide abortion care must be licensed to practice medicine and be board-certified in obstetrics and gynecology. In 2017, Louisiana physicians provided 9,920 abortions, including some to out of state residents.
Monica McLemore, a professor at the University of California, San Francisco, said that abortion is an “extremely safe” procedure, making admitting privileges unnecessary. “Because abortion is so safe, most institutions would never see enough complications to maintain admitting privileges,” she said. “It is an administrative burden and not clinically necessary or meaningful.”
A 2018 report from the National Academies of Science, Engineering, and Medicine found that 95% of abortions are provided in clinics or “office-based” settings and that such a system is safe. The report “found no evidence indicating that clinicians that perform abortions require hospital [admitting] privileges to ensure a safe outcome for the patient, but they should be able to provide or arrange for patient access or transfer to medical facilities.”
Because abortion is controversial, hospitals have proven reluctant in some locations to give providers admitting privileges. Some hospitals also require doctors to admit a certain number of patients a year, which therefore puts doctors at clinics with few referrals at a disadvantage.
The federal government has submitted an amicus brief to the Supreme Court in support of the Louisiana law. The Trump administration argues that the abortion regulation does not impose an unconstitutional “undue burden,” the legal standard used to determine if an abortion regulation is too cumbersome. The law “would not create a substantial obstacle to obtaining an abortion for a large fraction of Louisiana women seeking one—let alone all such women—and therefore is not facially unconstitutional,” attorneys for the federal government wrote.
But McLemore said that if the law forced abortion care centers in the state to shutter, as some fear it would, the distance women would be forced to travel, along with the resulting delays in care, would become undue burdens. “What is an undue burden for one person may be an inconvenience or not an issue at all for others,” she said. “When you think about poverty and the impact it has on people, multiple visits, time off from work, childcare and care for other children are huge burdens when attempting to seek basic healthcare.”
Almost 200 members of Congress, the American Medical Association, American College of Obstetricians and Gynecologists, the ACLU, and other advocacy groups have signed on to amicus briefs expressing their belief that Louisiana’s law rises to the undue burden standard and would unfairly limit abortions, especially for low-income women.
The Baton Rouge federal judge who first considered the law agreed in 2016, rejecting the admitting requirement because it imposed burdens on women, including “the risks from delays in treatment including the increased risk of self-performed, unlicensed and unsafe abortions.”
But the 5th U.S. Circuit Court of Appeals, in a 2-1 decision issued just before Kavanaugh was confirmed by the Senate, disagreed. The panel rejected the district court’s analysis that clinics in Baton Rouge and Shreveport would be forced to close, saying it seemed likely that the doctors in Louisiana performing abortions could get hospital privileges. Although advocates have argued that only the clinic in New Orleans would remain open—creating a drive of more than 300 miles for women in northern parts of Louisiana to reach an abortion provider—the court said that driving distances would not increase.
In its amicus brief, the American Bar Association took direct aim at the 5th Circuit, saying the appellate panel was both disregarding the precedent set by the 2016 case Whole Woman's Health v. Hellerstedt, which struck down Texas’ admitting privileges law, and the findings of the district judge. The case "raises significant concerns about adherence to basic rule of law principles," the group argued.
Others have objected to the court agreeing to hear a different argument by Louisiana’s lawyers, which challenged the standing of abortion facilities and doctors to file lawsuits against new state abortion restrictions. Lawyers representing the Louisiana clinic that led the legal challenge said in a brief this contention totally disregards three past Supreme Court decisions that found providers do have standing.
To understand how the justices might lean in the current case, it’s helpful to look back at how the court voted in 2016. The court’s four liberal justices all voted to strike down Texas’ law and they were joined by Kennedy, who has since been replaced by Kavanaugh. The court’s conservative justices—Samuel Alito and Clarence Thomas—were joined in their dissent by Chief Justice John Roberts. Justice Antonin Scalia, who has since been replaced by Gorsuch, died before the case was decided.
Many court watchers predict Kavanaugh and Gorsuch will side with Alito and Thomas in letting the law stand—but some say that Roberts could become a swing vote. Roberts has sided with conservatives on several other abortion cases, including one that struck down a California law regulating anti-abortion crisis pregnancy centers. But Roberts last year joined the court’s liberals in temporarily blocking enforcement of Louisiana’s admitting privileges law. Roberts is known to sometimes cross ideological lines—he twice voted to uphold the Affordable Care Act—and has spoken extensively about his respect for case precedence.
“Chief Justice Roberts surprised many people in backing the Patient Protection and Affordable Care Act when the insurance mandate was challenged,” said McLemore. “Perhaps he may side with justices who understand that rights and precedence still matter.”
But Melissa Murray, a law professor at New York University, told Vox in 2018 that while Roberts, a conservative legal thinker, has said he sees seminal cases like Roe v. Wade as established precedent, he might be more willing to overlook court precedent on smaller abortion cases. “While Roberts might be wary of voting to overturn Roe outright ... he might be more amenable to continuing to chip away at the abortion right, allowing the Court, over time, to eventually overturn Roe entirely,” Murray said.
Emma Coleman is the assistant editor for Route Fifty.