United States: Supreme Court to Hear Abortion Case From Louisiana

WASHINGTON — The Supreme Court agreed on Friday to hear a challenge to a Louisiana law that its opponents say would leave the state with only one doctor in a single clinic authorized to provide abortions.

The case is the court’s first on abortion since President Trump’s appointments of two justices shifted the court to the right, and the court’s ruling, expected in June, could thrust the abortion issue into the center of the presidential campaign.

The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. Only one doctor in Louisiana has been able to meet the requirement, the law’s challengers say.

The case is very likely to yield an unusually telling decision, reshaping the constitutional principles governing abortion rights, because in 2016, the court struck down an essentially identical Texas law.

The vote in the 2016 decision was 5 to 3, with Justice Anthony M. Kennedy joining the court’s four-member liberal wing to form a majority. It was decided by an eight-member court after the death of Justice Antonin Scalia that February, and since then, Justice Neil M. Gorsuch was appointed to succeed Justice Scalia and Justice Brett M. Kavanaugh to succeed Justice Kennedy.

Alexis McGill Johnson, the acting president of Planned Parenthood, said the court’s ruling could be momentous.

“Access to abortion is hanging by a thread in this country, and this case is what could snap that thread,” she said in a statement.

Jeff Landry, Louisiana’s attorney general, said he would defend what he called the state’s “pro-woman admitting privileges law.” He and other supporters of the law say that it protects the health and safety of women seeking abortions, and that the requirements for obtaining admitting privileges helps ensure the competence of doctors.

Opponents dispute that, saying that hospitalizations after abortions are rare, that women would receive medical care at hospitals whether their doctors had admitting privileges or not and that abortion providers are often unable to obtain admitting privileges for reasons unrelated to their competence.

Mr. Landry has questioned whether abortion providers should be able to challenge the law at all. “Incompetent and unsafe providers,” he said in a statement, “should not be allowed to challenge health and safety standards designed to protect women from those very providers.”

A divided three-judge panel of the federal appeals court in New Orleans upheld the Louisiana law last year notwithstanding the 2016 decision, saying that the law’s benefits outweighed the burdens it imposed.

“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry E. Smith wrote for the majority. In particular, he wrote, “the admitting privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.”

In November, the Supreme Court granted a last-minute request from abortion providers to block the law while they pursued an appeal in the case, Gee v. June Medical Services, No. 18-1460. That interim ruling featured an unusual 5-to-4 coalition, with Chief Justice John G. Roberts Jr. joining the court’s liberals. He had dissented in the 2016 decision.

The meaning of Chief Justice Roberts’s vote to block the Louisiana law is contested, and it is hardly certain he will vote to uphold the law on the merits. Instead, he might have meant only to ensure an orderly process in which the Supreme Court, rather than an appellate panel, decides whether to limit or overrule a recent Supreme Court precedent.

The evidence on where Chief Justice Roberts and Justices Gorsuch and Kavanaugh stand on abortion rights is fairly thin, but it all points toward skepticism. Chief Justice Roberts, for his part, has voted to uphold restrictions on abortion.

Justice Gorsuch has written little about abortion. But in a 2006 book on euthanasia and assisted suicide, he argued that a key 1992 abortion precedent, Planned Parenthood v. Casey, should be interpreted narrowly.

As an appeals court judge, Justice Kavanaugh dissented from a decision allowing an undocumented teenager in federal custody to obtain an abortion, writing that the majority’s reasoning was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

Ms. McGill Johnson of Planned Parenthood said Justice Kavanaugh appeared to hold the crucial vote in the new case.

“Three years ago,” she said, “the Supreme Court decided that laws like this one in Louisiana had no purpose other than to make abortion more difficult to access. There’s only one reason the court would not strike down the Louisiana law and that is because Justice Kennedy, who voted to protect abortion access just three years ago, has been replaced with Justice Kavanaugh.”

On Friday, the Supreme Court also agreed to decide a threshold issue pressed by Louisiana in a separate petition arising from the same case, Gee v. June Medical Services, No. 18-1460. The state argued that the abortion providers who filed the lawsuit lacked legal standing to challenge health and safety regulations on behalf of their patients.

If the court accepts that argument, it could avoid deciding whether the Louisiana law is constitutional.

But other abortion cases are likely to follow the one from Louisiana, whatever its outcome, because several state legislatures have enacted laws that seem calculated to try to force the Supreme Court to consider overruling Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Mr. Trump has vowed to appoint justices who will vote to the overrule the decision.

The Louisiana law was struck down in 2017 by Judge John W. deGravelles of the Federal District Court in Baton Rouge, who said that doctors willing to perform abortions were often unable to obtain admitting privileges for reasons unrelated to their competence and that the law created an undue burden on women’s constitutional right to abortion.

The law, Judge deGravelles ruled, was essentially identical to the one from Texas that the Supreme Court struck down in the 2016 decision, Whole Woman’s Health v. Hellerstedt. Justice Stephen G. Breyer, writing for the majority in that decision, said courts must consider whether the benefits claimed for laws that put restrictions on abortion outweigh the burdens they put on the constitutional right to the procedure.

There was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment,” Justice Breyer wrote. But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to 20 from 40.

A divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, reversed Judge deGravelles’s decision and upheld the Louisiana law.

The Louisiana law “does not impose a substantial burden on a large fraction of women,” Judge Smith wrote for the majority. He faulted doctors seeking to provide abortions in the state for not trying hard enough to obtain admitting privileges and said abortions would remain available after the law went into effect.

In dissent, Judge Patrick E. Higginbotham wrote that the majority’s ruling was impossible to reconcile with the Supreme Court’s 2016 decision in the Texas case and with its 1992 ruling in Casey, which banned states from placing an “undue burden” on the constitutional right to abortion.

“I fail to see,” Judge Higginbotham wrote, “how a statute with no medical benefit that is likely to restrict access to abortion can be considered anything but ‘undue.’”

The full Fifth Circuit refused to rehear the case by a 9-to-6 vote. In dissent, Judge Stephen A. Higginson wrote that the Louisiana law was “equivalent in structure, purpose and effect to the Texas law” invalidated by the Supreme Court in 2016.

“I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion,” Judge Higginson wrote. “The majority would not, and I respectfully suggest that the dissenters might not either.”

Follow Adam Liptak on Twitter @adamliptak.

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