On Wednesday, the Supreme Court will hear oral arguments in the first major abortion case of the Trump era.
The case centres on an arcane Louisiana law requiring abortion providers to have “admitting privileges” at nearby hospitals – that is, the right to refer patients there. Sounds innocuous – except that, just as in Britain, anyone can call an ambulance and have someone taken to hospital if their life is in danger, meaning the “privileges” actually don’t count for much.
Opponents say the measure is medically unnecessary and will result in the closure of all but one clinic in the state. Louisiana claims it protects the health and safety of those seeking abortions.
The court struck down a virtually identical Texas law in 2016, in the landmark Whole Woman’s Health v Hellerstedt decision. The only thing that has changed since then is the composition of the court.
Justice Anthony Kennedy, a longtime swing voter who often sided with liberal justices on abortion rights, retired in 2018. And Justices Brett Kavanaugh and Neil Gorsuch, two conservatives appointed by President Donald Trump, have joined the bench.
The Louisiana case, June Medical Services v Russo, comes amid an unprecedented wave of anti-abortion legislation pushed by state lawmakers seemingly emboldened by Trump’s judicial picks and his inflammatory rhetoric.
The justices will issue a ruling by the end of June, potentially making abortion a key issue in the upcoming presidential election.
While it is unlikely the court will use this case to revisit Roe v Wade, the 1973 ruling that recognised a woman’s constitutional right to an abortion, the decision could still dramatically shape the future of abortion access in America.
“If the Supreme Court reverses on admitting privileges, it essentially becomes a green light for all [Republican] states to reintroduce restrictions that courts have ruled unconstitutional in the past,” said Robin Marty, author of Handbook for a Post-Roe America.
Gretchen Borchelt, vice president for reproductive rights at the National Women’s Law Center, warned that a Louisiana victory would “propel us towards the total demise of the right to abortion in this country”.
The majority of Americans support abortion rights, she added. “This decision will reveal if the court is in touch with that reality – or wilfully disregarding it.”
A Sneaky Way To Close Clinics
In 2014, Louisiana enacted the Louisiana Unsafe Abortion Protection Act, which requires doctors who perform abortions to be able to admit patients to a hospital within 30 miles of the place where the abortion is performed.
The prevailing medical consensus is that admitting privileges are unnecessary. Abortion is very safe, and serious complications are rare, estimated to occur in fewer than 1% of abortions. If hospitalisation is needed, patients will receive the same quality of care, regardless of whether their doctor has admitting privileges or not.
“The admitting privileges requirement does not improve the health or safety of patients,” the American Medical Association and the American College of Obstetricians and Gynecologists said in a Supreme Court brief. “It does, however, impede patients’ access to abortion, especially for already vulnerable demographic groups.”
According to T J Tu, a senior counsel at the Center for Reproductive Rights, whose attorneys will argue the case before the Supreme Court, it can be difficult for doctors who provide abortions to get admitting privileges because they so rarely need to admit patients.
At Hope Medical for Women, the Shreveport abortion clinic challenging the Louisiana law (and one of only three clinics left in the state), the clinic’s primary physician tried for more than a year to get admitting privileges at nearby hospitals and was denied, Tu said, for reasons unrelated to the doctor’s competency.
Admitting privileges represent a business relationship between hospitals and physicians, he explained. Hospitals want to make sure their beds are filled so they can charge for their services. “They extend privileges to physicians who routinely send patients to the hospital,” he said during a briefing call for the media. “Abortion is so safe that you almost never send a patient to a hospital.”
Reproductive rights groups refer to requirements such as Louisiana’s as Trap laws – short for “targeted regulation of abortion providers”.
Such laws impose an ever-growing list of expensive and unnecessary regulations on abortion clinics under the guise of improving patient safety.
“It’s a way to close clinics in Louisiana,” said Kathaleen Pittman, an administrator at Hope. “Despite their claims that it is out of concern for the health and welfare of women, we know that cannot be true.”
Texas As Harbinger
Louisiana began considering its admitting privileges law in 2014, just months after the passage of a similar law in Texas – HB2 – resulted in the closure of half that state’s clinics. Louisiana modelled its legislation on the Texas measure, plaintiffs say, knowing that it would have a comparable effect.
In 2016, the Supreme Court struck down key parts of HB2 in a historic victory for abortion rights. In Whole Woman’s Health, the court found that Texas’s admitting privileges requirement provided no health benefit and imposed an “undue burden” – the test for whether a law regulating abortion is unconstitutional – on a woman’s fundamental right to an abortion. (Much of the damage was already done; most of the clinics that closed have not reopened.)
In 2017, a federal district court in Louisiana blocked the state from implementing its admitting privileges requirement, citing Whole Woman’s Health. It found that the law would “cripple women’s ability to have an abortion,” and force clinic closures, much like HB2 did in Texas. If it went into effect, the court concluded, Louisiana would be left with only one doctor to care for the approximately 10,000 women seeking abortions each year.
The US Court of Appeals for the 5th Circuit later reversed the district court ruling. It found the law did not impose an “undue burden” on people seeking abortions, arguing that the closure of clinics would not impose driving distances as long as those in Texas and that it was easier to get hospital admitting privileges in Louisiana. Doctors there had simply not tried hard enough.
Hours before the law was to go into effect, the Supreme Court temporarily blocked it. Notably, Chief Justice John Roberts sided with the court’s four liberal justices in voting for the emergency stay. Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh opposed it.
Is The Case Even Allowed?
Beyond the question of whether Louisiana’s law imposes an undue burden on someone’s ability to obtain an abortion, the court must consider another, wonkier issue: whether the plaintiffs have standing to bring the case in the first place.
Generally, people have to defend their own constitutional rights in court. But since 1976, the Supreme Court has allowed clinics and doctors to sue on behalf of patients. This is called “third-party standing”. These days, the plaintiffs in most major abortion cases are clinics and physicians, not pregnant people seeking abortions. In the case currently before the Supreme Court, the plaintiffs are June Medical Services – the corporate name of Hope clinic – and two of its doctors.
Louisiana is now asking the court to upend decades of precedent and reconsider “third-party standing” in abortion cases. The state contends that patients are capable of filing suits themselves and, as the law is intended to protect patients from bad doctors, there is an inherent conflict of interest between providers and patients. The state is likely to find a sympathetic ear in Justice Clarence Thomas, who made the case against third-party standing in his dissent in Whole Woman’s Health.
What Are The Possible Outcomes?
Mary Ziegler, a professor at Florida State University and noted historian of abortion law, laid out a handful of different possible outcomes in June Medical Services v Russo.
The court could strike down Louisiana’s law on the grounds it will put an undue burden on those seeking abortions, and affirm the 2016 precedent. “They could say this is an identical law, and just because the court’s membership has changed doesn’t mean the lower courts can ignore Supreme Court precedent,” she said.
The justices could uphold Louisiana’s law and overrule Whole Woman’s Health. Advocates say this would decimate abortion access in Louisiana and allow states across the country to essentially regulate abortion clinics out of existence. As it stands, six US. states have only one abortion clinic left, and many people in rural areas have to travel hundreds of miles to receive care.
Another option is that the court finds that the facts in Louisiana are substantially different from those in Texas, allowing it to uphold the law while keeping Whole Woman’s Health mostly intact. This could still encourage a slew of new abortion restrictions, Ziegler said, as states could argue that their laws will not have the same impact as HB2 did in Texas.
The court could also sidestep the merits of the case by ruling that the plaintiffs lack standing. If the justices rule that abortion providers can no longer challenge abortion restrictions on behalf of their patients, it would drastically change how such cases are litigated across the country, Ziegler said. Pregnant plaintiffs would likely have to file suit themselves.
The case is unlikely to result in overturning Roe v Wade, she said, but it could be a step toward eliminating nationwide abortion rights.
“A lot of the arguments in the case centre on the claim that abortion hurts women,” she said. “If the court shows an openness to those arguments, then we would expect to see more of those arguments being made, because it would suggest that that might be the most effective strategy to chip away at Roe.”
Ziegler said she would have her eye on Chief Justice John Roberts, who she considers the swing voter.
“There’s not much to suggest that he is sympathetic to arguments for abortion rights [...] but this case is not just about abortion,” she said. “It’s also a case about precedent and the court’s attitude towards its own precedent.”
Roberts may worry that if the court reverses itself so quickly, the public will view the highest court in the land as a partisan institution.
“If you have years and years of precedent and then one person on the Supreme Court changes and all the precedent goes away, it does make it seem as if the court can’t stay above the political fray,” Ziegler said, “which is something Roberts very much would like the court to do.”