Supreme Court Suggests Divide Over Louisiana Abortion Limits

(Bloomberg) -- The U.S. Supreme Court signaled a sharp divide in its first abortion case in four years, with Chief Justice John Roberts sending few clues about how he will cast his pivotal vote.

The justices are considering a challenge to a Louisiana law requiring clinic doctors to have admitting privileges at a nearby hospital. The statute is similar to a Texas measure the court struck down in 2016, before President Donald Trump made two nominations that shifted the court to the right.

The case is testing Roberts's appetite for rolling back abortion-rights precedents and could foreshadow a fight over the landmark 1973 Roe v. Wade ruling, which legalized the procedure nationwide. A ruling is due by the end of June, potentially making abortion a central issue in the November election. The Trump administration is supporting the Louisiana law.

Roberts, who dissented in 2016, suggested during Wednesday's argument that he didn't see any significant factual differences between the two laws, at least with regard to the health and safety interests the states say the measures promote.

But he didn't indicate whether he would stick with his original position in that case or treat the 2016 ruling as binding precedent requiring the Louisiana law to be struck down.

Other justices were more clear about their views. Justice Elena Kagan said that in more than two decades, only four women required hospitalization after receiving abortions at the Shreveport clinic challenging the law. That clinic, the Hope Medical Group for Women, says it serves 3,000 patients a year.

Constitutional Right

“I don't know of a medical procedure where it's lower than that, of any kind,” Kagan said.

Justice Samuel Alito, in contrast, questioned whether providers should have the right to challenge health-and-safety regulations on behalf of their patients.

“The constitutional right at issue is not a constitutional right of abortion clinics, is it?” Alito asked. “It's the right of women.”

Louisiana's law, which carries criminal penalties, requires doctors to have privileges at a hospital within 30 miles (48 kilometers) of the abortion facility. The 2014 measure was in effect for a brief period in 2016. Two unidentified doctors are joining the Shreveport clinic in fighting the law.

Opponents say the law would leave the state with only one clinic, in New Orleans, and just one doctor to serve the 10,000 women who seek abortions every year in the state. They say other doctors have been unable to obtain the required privileges.

Louisiana says it's trying to protect women from unscrupulous and incompetent abortion providers. Both Louisiana and the Trump administration say the court should overturn the 2016 Texas ruling if necessary.

Kavanaugh and Gorsuch

One of Trump's two appointees, Justice Brett Kavanaugh, suggested he was looking for a way to uphold admitting-privileges laws in at least some circumstances.

“Assume all the doctors who currently perform abortions can obtain admitting privileges,” he said. “Could you say that the law still imposes an undue burden, even if there were no effect?”

Julie Rikelman, the lawyer representing the clinic and doctors, said that situation “may pose a much harder question.” But she added that a trial judge in the Louisiana case “explicitly found that the burdens of this law would be severe.”

The other Trump appointee, Justice Neil Gorsuch, asked no questions during the hour-long argument.

Roberts pressed lawyers on both sides as to whether admitting-privileges requirements needed to be evaluated on a state-by-state basis. He suggested he saw some aspects of the case as more amenable than others to that type of analysis.

“I understand the point that the impact of the law varies from state to state,” he said. But as for the law's benefits, “they're not going to change from state to state,” Roberts added.

Good-Faith Efforts

A federal appeals court upheld the Louisiana law on a 2-1 vote by citing what the judges said were key differences from the Texas measure. The appeals court said the Louisiana law wasn't forcing any clinics to close, and the majority blamed doctors for not making good-faith efforts to get the required privileges.

Louisiana Solicitor General Elizabeth Murrill pressed that point Wednesday, saying that “there's evidence in virtually all of them that they sabotaged their own applications.”

The Trump administration is joining Louisiana in arguing that the clinic and doctors don't have what is known as “third-party standing,” the right to challenge the law on behalf of their patients. A ruling rejecting third-party standing could create a huge new obstacle for abortion-rights advocates as they fight a wave of new restrictions in conservative states.

But that argument drew little traction on Wednesday. Although Justice Clarence Thomas has previously said clinics don't have third-party standing, Alito was the only justice who suggested during the argument that he agreed.

Justice Stephen Breyer said he counted eight prior cases in which the court had let clinics sue on behalf of their patients.

“I mean, we could go back and reexamine Marbury v. Madison,” Breyer told Deputy Solicitor General Jeffrey Wall, referring to the 1803 ruling that established the Supreme Court's power to review federal statutes. “You have good arguments. But why depart from what was pretty clear precedent?”

Wall, the Trump administration's lawyer, said the court had never squarely decided the issue “in the face of a potential or actual conflict of interest.”

The cases are June Medical Services v. Russo, 18-1323, and Russo v. June Medical Services, 18-1460.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo

©2020 Bloomberg L.P.