The outcome of the first abortion-related case to reach the Supreme Court during the Trump administration appears to hinge on how Chief Justice John Roberts and Trump appointee Brett Kavanaugh decide to thread the needle between respecting the court’s precedents and adhering to their own views on abortion law.
The roles of the justices became evident Wednesday during arguments over a Louisiana law requiring abortion providers to obtain admitting privileges at local hospitals.
Lawyers representing Louisiana abortion clinics that are challenging the law argued the court must stick to the precedent set in 2016, when a different roster of justices struck down a nearly identical Texas law, saying it provided “few, if any, health benefits for women.”
Roberts and Kavanaugh both appeared to probe the scope of that decision Wednesday, with Roberts suggesting at several points that the ruling that the Texas law had no medical benefit would seem to extend to Louisiana and other states.
“As far as the benefits of the law, that’s going to be the same in each state, isn’t it?” Roberts asked Louisiana Solicitor General Elizabeth Murrill, who was defending the measure.
Murrill resisted that idea, but it suggested that Roberts — who dissented in the 2016 case, Hellerstedt v. Whole Women’s Health — was looking for a way to have the court stand by that decision, rather than overrule it.
T.J. Tu, senior counsel with the Center for Reproductive Rights, which argued the case on behalf of the Louisiana clinics, afterward said Roberts’ comment makes him “very confident” of a ruling in their favor. “I was really encouraged by the arguments by the Chief Justice that the safety of abortion does not vary state by state,” he said.
Roberts and Kavanaugh also passed up the chance to publicly to defend a 5th Circuit Court of Appeals ruling that overturned a district court's injunction against the Louisiana law — a stance that could be encouraging to abortion-rights advocates. Justice Samuel Alito vigorously defended the appeals court ruling, which concluded, contrary to the district court’s finding, that the law “promotes the well-being of women seeking abortion.”
Julie Rikelman, an attorney for plaintiffs challenging the law, emphasized on Wednesday how rare it is for a woman to have to go a hospital following an abortion, calling the procedure “extremely safe” and characterizing the admitting privileges requirement as “a solution for a problem that doesn’t exist.”
The three women justices seized on that point as well.
Justice Ruth Bader Ginsburg noted that most abortions don’t result in a complication, and when they do it generally happens after the patient has gone home, meaning she would seek care at her local hospital.
“I’m prepared to concede that complications do not happen very often,” said Deputy Solicitor General Jeffrey Wall, who argued on behalf of the Trump administration on Louisiana’s side. “But they do happen, and when they do, they’re serious.”
Kavanaugh, the court’s newest justice, repeatedly raised the question of whether admitting-privileges laws were always unconstitutional or whether they might be legal if doctors could easily obtain them. The providers bringing the legal challenge said that it was all but impossible for them to do so.
The attorneys for Louisiana and the Justice Department also argued repeatedly that the abortion doctors in the state did not readily try to obtain admitting privileges.
“I think there’s evidence [for] virtually all of them that they sabotaged their own applications,” Murrill said.
Alito enthusiastically endorsed this argument, saying it wasn’t in the physicians' interest to comply with a law they were challenging in court.
Rikelman responded that the district court found after reviewing all the evidence and testimony that the providers made a “good faith effort” to comply, and that hospitals often require a certain number of admissions per year to grant admitting privileges. That means abortion providers with almost no need to admit a patient would struggle to obtain them. And for providers who only give abortion pills and do not perform surgical abortions, it’s virtually impossible.
Justice Elena Kagan also jumped in to point out that hospitals can deny admitting privileges for other reasons, including a religious opposition to abortion.
The court also took up the separate matter of whether the abortion clinics and doctors challenging the law have legal standing. Louisiana argues they don't — an assertion that could, if the justices agree, completely upend abortion litigation across the country.
Because the criminal penalties in many abortion laws fall on doctors rather than pregnant women, and because individual patients can’t easily spend years fighting in court, the vast majority of lawsuits over abortion laws are brought by providers.
Louisiana argued it’s a conflict of interest for clinics like Hope Medical — the lead plaintiff in Wednesday’s case — to sue on behalf of their patients, saying the doctors don’t have their best interest at heart.
Justice Sonia Sotomayor, among others, hit back at this suggestion.
“What sane woman who's a plaintiff is going to have a conflict with a doctor who wants to protect her rights?” she said. “Their interests are not misaligned.”
The Court's liberal justices also warned that embracing that stance would upend a half century of jurisprudence in abortion cases. Justice Stephen Breyer said eight of the court’s abortion rulings were premised “directly or indirectly” on the notion that abortion providers or clinics can litigate on behalf of their patients.
Alito rallied behind Louisiana’s arguments on that point, contending it was strange that doctors and not patients were the ones filing suit.
“The constitutional right at issue is not a constitutional right of abortion clinics, is it?” Alito said. “It's the right of women.”
Roberts and Kavanaugh did not weigh in on the standing issue, raising doubts about whether a majority of the court is prepared to make a major shift in how the courts deal with abortion litigation. And while Justices Neil Gorsuch and Clarence Thomas were silent throughout Wednesday’s argument, both are considered firmly opposed to the Supreme Court’s abortion jurisprudence and highly likely to uphold the Louisiana law.
A decision in the case is expected in June, just a few months ahead of a heated election in which advocates on both sides of the abortion issue are spending tens of millions of dollars mobilizing voters. Any decision that rolls back abortion rights could ramp up the profile of the debate just as the general election presidential campaign is getting into high gear.
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Outcome of Louisiana abortion case may rest on Roberts, Kavanaugh - POLITICO
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