WASHINGTON — The Supreme Court appeared divided on Wednesday during arguments in a critical abortion case that could dramatically reshape the landscape of reproductive rights in America.
The case centers on a Louisiana law that bans doctors from providing abortions unless they have admitting privileges at a hospital within 30 miles, a requirement that major medical groups deem unnecessary and ultimately detrimental to women’s health.
The court struck down a virtually identical Texas law in 2016, with Justice Stephen Breyer writing for the majority that the admitting privilege requirement provided “few, if any, health benefits,” posed “a substantial obstacle to women seeking abortions,” and constituted an “undue burden” on the right to an abortion ― the legal test for whether a law regulating abortion is unconstitutional.
But the court has moved to the right since then. June Medical Services v. Russo is the first major abortion case since Justices Neil Gorsuch and Brett Kavanaugh were appointed to the high court by President Donald Trump.
Chief Justice John Roberts is expected to be the swing vote in the case. While he dissented in Whole Woman’s Health v. Hellerstedt, the 2016 case, some legal experts believe he may be reluctant to overturn it so quickly.
“This is a case about respect for the court’s precedent,” said Julie Rikelman, a lawyer at the Center for Reproductive Rights who represents the abortion clinic challenging the law. She argued that the justices must extend the court’s ruling in Whole Woman’s Health to Louisiana’s law. Nothing had changed since the 2016 decision “that would justify such a legal about-face,” she said.
She emphasized that Whole Woman’s Health was not based solely on the state-specific impact of admitting privileges in Texas, but on studies and expert testimony on the general effect of the regulation on women seeking abortions.
The court’s four liberal justices appeared inclined to oppose the law. Roberts offered few clues on his position. His questions focused on the extent to which the court was bound by the decision in Whole Woman’s Health, asking at one point if “the results could be different in different states.”
Rikelman said that if enacted, the law would have an even more severe impact on clinics in Louisiana than the Texas law had in that state. After Texas passed its admitting privileges law, about half its clinics shuttered. Louisiana would be left with only one doctor and one clinic to provide services for the entire state, she said, decimating abortion access.
Elizabeth Murrill, Louisiana’s solicitor general, disputed those facts. She argued that abortion providers in the state did not try hard enough to get admitting privileges, and that the law was justified by “abundant” evidence of health and safety violations. The requirement would not significantly burden women seeking abortions, she said, because Texas and Louisiana are distinct states with fundamentally different circumstances.
“The laws are different, the facts are different, the regulatory structures are different,” Murrill said.
Roberts did not seem persuaded that the Louisiana law provides medical benefits, as Louisiana’s solicitor general claimed. “I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that’s going to be the same in each state, isn’t it?” he asked.
In Whole Woman’s Health, the court found the admitting privileges requirement served no health benefit.
Justice Ruth Bader Ginsburg questioned whether the hospital admitting privilege requirement for doctors made sense. She noted that complications are rare, and in those cases where women need hospitalization, it is usually after the abortion, when they are back home. They are more likely to be admitted to hospitals in their own communities, she said, which could be hundreds of miles from the clinic where they had the procedure.
Murrill also argued that the plaintiffs in the case ― a Shreveport abortion clinic and two of its doctors ― did not have legal standing to bring the case in the first place. As a general rule, people have to assert their own constitutional rights in court. But since 1976, the Supreme Court has allowed clinics and doctors to sue on behalf of patients, under a legal doctrine called “third-party standing.”
Murrill challenged the longstanding precedent, contending that abortion providers have a conflict of interest with their patients and should not be able to represent them. Justice Samuel Alito seemed receptive to this argument. But if the court was to decide that doctors and clinics could not bring cases on behalf of their patients, it would need to overrule at least eight previous abortion decisions, Breyer said.
Kavanaugh appeared to have similar concerns as Roberts. He asked the lawyer for the clinic whether she thought all admitting privilege laws were unconstitutional, and if they could ever have a valid purpose.
She said the medical consensus against the laws was clear.
Justice Clarence Thomas and Gorsuch did not ask any questions.
Reproductive rights groups warn that if the Louisiana law is upheld, it would allow abortion clinics to be regulated out of existence. The constitutional right to an abortion would exist in name only for women in many largely rural states, especially in the Midwest and the South.
“Louisiana lawmakers have tried every which way to end abortion care in our state,” said Kathaleen Pittman, clinic administrator at Hope Medical Group, the lead plaintiff. “This law would be devastating for the women in our state and would no doubt have repercussions nationwide.”
A decision is expected by late June.