Roberts wrestles with abortion law in high-stakes Louisiana case

The Supreme Court appeared split on Wednesday during arguments over a Louisiana abortion law that could see the court revisit the protections that emerged in the landmark Roe v. Wade decision.

In June Medical Services v. Russo, the first major abortion case since President Trump shifted the court’s balance to the right, the justices weighed the constitutionality of a law requiring that Louisiana doctors who perform abortions be able to admit patients at a local hospital.

Chief Justice John Roberts, likely the crucial vote, offered no clear signal about whether the Louisiana regulation might face the same fate as a virtually identical Texas law the court struck down four years ago. 

Supporters of the Louisiana law have painted it as a necessary regulation to guarantee the health and safety of patients. But critics of such laws, including the American Medical Association, say abortion is safe and the extra regulations are unnecessary. 

Roberts’ questions Wednesday seemed focused on the extent to which the court is bound to follow the 2016 decision in Whole Woman’s Health v. Hellerstedt. In that case, a 5-3 court struck down Texas’ admitting-privilege law — which served as a model for the Louisiana law — as unconstitutional, finding its burdens outweighed its benefits. Roberts joined a dissent from that ruling.

“Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed state-by-state?” Roberts asked an attorney representing Louisiana abortion clinics and doctors who sued on behalf of their patients. “Could the results be different in different states?” he added.

Justice Brett Kavanaugh, one of Trump’s two nominees to the high court, also asked if the benefits-versus-burdens legal test could be a state-by-state evaluation that produced varying results.

“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?”

The four liberal justices appeared inclined to view the Louisiana statute, which requires admitting-privileges at a hospital within 30 miles of a clinic, as serving no medical purpose and placing a substantial burden on women’s right to abortions.

“Most of these abortions don’t have any complications and the patient never gets near a hospital, but if she needs a hospital, it’s certainly not going to be the one near the clinic. She will be home,” said Justice Ruth Bader Ginsburg, citing a statistic showing that fewer than 1 percent of abortions require hospitalizations.

Justice Samuel Alito seemed unconvinced that abortion access would be significantly obstructed because of the Louisiana law, a view likely shared by fellow conservative Justices Clarence Thomas and Neil Gorsuch, neither of whom spoke during arguments.

In addition to the merits of the Louisiana law, oral arguments also saw debate over whether abortion providers had the legal right to sue on behalf of patients. 

Alito wondered whether one of the plaintiffs, a Louisiana doctor who was unable to gain admitting privileges, had made a good faith effort to obtain the required credentials, since doing so might have undermined the lawsuit.

“It would be counter to his own interests for him to make a super effort to get admitting privileges, wouldn’t it, because he’d be defeating his own claim?” Alito asked the doctors’ attorney, one of several questions about possible conflicts of interest between doctors and patients. 

Justice Sonia Sotomayor, one of the court’s reliably liberal votes, was adamant that abortion providers’ interests were aligned with those of patients.

“What sane woman who’s a plaintiff is going to have a conflict with a doctor who wants to protect her rights by doing what they can to comply with the law?” she asked Jeffrey Wall, a Department of Justice (DOJ) attorney.

The DOJ argued in support of Louisiana, urging the justices to narrow or even overturn its 2016 ruling that struck down the Texas abortion law.

The case is before the justices in an election year, with high stakes for both sides in the debate.

Over 200 members of Congress who oppose abortion rights, including two Democrats, signed on to a brief asking the court to “revisit” the decision in Roe v. Wade. One signatory, Rep. Mike Johnson (R-La.), occupied a front row seat in the courtroom at Wednesday’s oral arguments.  

“The argument of the state of Louisiana, and the one we made early on in this case, is that the abortion industry’s interests are in profits, not patients,” Johnson said following the arguments.

Senate Majority Leader Charles Schumer (D-N.Y.), meanwhile, joined a rally outside the court to urge the justices to protect abortion rights.

The case arose from a challenge to a law known as Act 620, which Louisiana’s Republican-led legislature passed in 2014. The law required physicians who perform abortions to hold “active admitting privileges” at a hospital within 30 miles of their facility.

In practice, this meant physicians who performed abortions had to be members of the nearby hospital’s medical staff, have the authority to admit patients there and perform relevant diagnoses and surgery. 

A federal district court ruled that Louisiana’s admitting privilege was unconstitutional, saying it would “cripple women’s ability to have an abortion in Louisiana.” 

The court found the law provided “no significant health benefits,” while saddling doctors with burdensome requirements that would force the closure of two of the three abortion clinics in the state. Applying the Supreme Court’s guidance in Hellerstedt, the district court ruled the law placed an undue burden on the roughly 10,000 women who seek abortions in Louisiana each year. 

But the Fifth Circuit Court of Appeals reversed that decision. The Fifth Circuit said that under Hellerstedt’s benefits-versus-burdens test, the Louisiana law “does not impose a substantial burden on a large fraction of women,” prompting an appeal to the Supreme Court.

Wednesday’s arguments contained numerous references to the Hellerstedt decision, in which the court’s since-retired swing vote, Justice Anthony Kennedy, joined the four liberals to strike down Texas’ admitting-privilege law.

The liberal justices, Ginsburg, Sotomayor, Elena Kagan as well as Stephen Breyer, who wrote the Hellerstedt opinion, are expected to oppose the Louisiana law, with Alito and Thomas, who dissented in the Texas opinion, likely to uphold it.

Since 2016, however, Trump has steered the court in a more conservative direction, with Kavanaugh, who replaced Kennedy, and Gorsuch on the bench.

The case will also test Roberts’ role as the court’s new ideological center, likely placing the deciding vote in his hands.

As a testament to the high political stakes, throngs of anti-abortion protestors and defenders of Roe gathered outside the Supreme Court hours before arguments began.

Court watchers from across the political spectrum on Wednesday parsed the justices’ questions for signs on how they would vote.

Julie Rikelman, who represented the Louisiana abortion providers, used the opening lines of her argument to remind the court of its recent decision. 

“This case is about respect for the Court’s precedent. Just four years ago, the Court held in Whole Woman’s Health that the Texas admitting privileges law imposed an undue burden on women seeking abortions,” she said. “The Louisiana law at issue here, Act 620, is identical to the Texas law and was expressly modeled on it.”

The liberal wing of the court embraced that argument.

Kagan leaned on precedent to push back against an assertion that admitting privileges served an important credentialing function. Critics say the claim is dubious and point to the state’s medical licensing protocol, which they argue is adequate without the additional regulation.

“It seems that Whole Woman’s Health precludes you from making this credentialing argument, doesn’t it?” Kagan asked Elizabeth Murrill, Louisiana’s solicitor general.

It is unclear though how the arguments about precedent will land with Roberts. Legal experts say the striking similarities between the Louisiana and Texas laws may make it difficult for him to break with recent precedent.

“Roberts has as much if not more of an interest as anyone in the public face and integrity of the court,” said Steven Schwinn, a law professor at the University of Illinois Chicago. “He is acutely aware that if the court were to take dramatic actions in the Louisiana case, like overturning Hellerstedt, it would widely be seen as a sheer political move.”

A ruling in the case is expected in late June, just months before the 2020 vote.

Updated at 3:15 p.m.