Legal

SCOTUS will review Louisiana abortion law, setting up blockbuster election year showdown

Supreme Court

The Supreme Court on Friday announced it will review Louisiana abortion restrictions that could leave the state with just one abortion provider, in a case that gives the high court's new conservative majority a chance to redefine abortion rights.

The Louisiana law would require doctors who perform abortions to have admitting privileges to a nearby hospital. It is similar to a Texas law the Supreme Court struck down in 2016, finding it posed an undue burden on a woman's constitutional right to access an abortion. The Justices also voted to take a related petition challenging the standing of Louisiana's abortion clinics to bring the legal challenge on behalf of their patients.

The decision to take the case means the Supreme Court will likely weigh in on abortion amid a presidential campaign in which access to the procedure is already poised to be a top issue. The soonest the court will hear the case is early next year, with a decision likely in the summer of 2020.

Emboldened by the Supreme Court's new conservative majority, a number of conservative-led states this year approved virtual bans on abortion, hoping to eventually trigger a Supreme Court review that could significantly narrow or abolish the right to terminate a pregnancy. The sweeping bans passed by Georgia and some other states are still working their way through lower courts, and none have taken effect. But there are other ways the high court, meeting for the start of its October term on Monday, can lay the groundwork and send a signal about the future of access to the procedure.

“For the first time in decades, it’s at least conceivable that there are five votes to overturn Roe v. Wade,” said Andrew Bath, executive vice president of the Thomas More Society, a conservative law firm with a different abortion-related case pending before the Supreme Court.

The Supreme Court has previously grappled with this Louisiana case. The Justices intervened in February in a narrow 5-4 vote to block the law from taking effect while a challenge from abortion providers was still winding through lower courts. At the time, Chief Justice John Roberts joined with four liberal justices to keep the law on hold before the court could consider whether to review the case on its merits. Justice Brett Kavanaugh, seen as a key vote on reproductive rights, dissented in that decision, saying he would have allowed the regulation to take effect.

The justices had been weighing whether to take up the Louisiana law for full review since the spring, an unusually long time that could have reflected their hesitance to take abortion cases. Chief Justice John Roberts has expressed concern about perceptions that the court has become tainted by partisanship, and the threat that poses to its reputation and credibility.

“They had somewhat of a hiatus last year from a lot of hot button issues including abortion,” said Steve Aden, the chief legal officer for the anti-abortion group Americans United for Life. “It was intentional. The chief justice wanted to give Kavanaugh in particular somewhat of a honeymoon.”

The justices in the previous term — the first with Kavanaugh on the bench — sidestepped several opportunities to tackle the issue. They voted not to take up a case over whether states could kick abortion providers out of their Medicaid programs. They ruled on a set of policies out of Indiana without holding a hearing. And they rebuffedAlabama’s petition to hear arguments about its ban on a common procedure used for second-trimester abortions. The cautious stance prompted a series of angry rebukes from Justice Clarence Thomas, who accused his colleagues of “abdicating our judicial duty” and contributing to the court’s “refusal to do its job.”

The Louisiana case, June Medical Services v. Gee, deals with requirements for abortion providers. A state law mandating them to have the ability to admit patients to a hospital within 30 miles was upheld last year by a panel of the 5th U.S. Circuit Court of Appeals, which is considered among the most conservative circuits in the country.

The appeals court in its 2-1 decision found the circumstances around the Louisiana law were "remarkably different" than the similar Texas law the Supreme Court overturned in 2016. The 5th Circuit found there was “no evidence” any abortion clinics would close under the Louisiana law because it was easier for doctors to obtain admitting privileges in the state. The court also said driving distances in the state are much shorter, so the law would not put an undue burden on anyone seeking an abortion.

The Supreme Court in the Texas case three years ago said the admitting privileges requirement, which other conservative states have enacted in some form, offered few if any health benefits, because abortion-related complications that require hospitalization are extremely rare. Former Justice Anthony Kennedy sided with the court's liberals in the 5-3 decision, seen at the time as a major victory for abortion rights supporters.

The court's makeup has changed significantly since then, with the addition of Trump appointees Neil Gorsuch and Kavanaugh.

Abortion providers represented by the Center for Reproductive Rights argued the Louisiana law would hurt the state's residents because it would allow just one of the state’s remaining three abortion clinics stay open.

"Abortion access in Louisiana is already hanging by a thread," said Nancy Northup, the president of the Center for Reproductive Rights, which will argue the case on behalf of June Medical. "The have already gone from seven in 2011 to just three today. If this law is allowed to go into effect, there will be just one abortion provider left to provide reproductive care to an estimated 1 million women of reproductive age."

The providers also note that women experiencing a complication from an abortion can go to a hospital regardless of whether their doctor has admitting privileges, and say the law is a backdoor way of curtailing access to the procedure. Anti-abortion backers of such laws promote them as efforts to make the procedure safe, though courts have often disagreed.

The Justices now have complete discretion on whether they want to rule narrowly on the Louisiana case in a way that leaves in place the standards set by Roe vs. Wade and Planned Parenthood vs. Casey, which states laws that place an undue burden on women seeking abortions are unconstitutional, or whether they want to revisit those decades-old precedents. Though abortion rights supporters have largely focused on the fate of Roe, advocates are preparing to argue that may not be the main concern.

"Louisiana is trying to sneak around the right to get an abortion by using an underhanded means to shut down clinics, so that no matter if Roe is still the law of the land, women have nowhere to get services," Northup said.