Civil and Human Rights

Justices to hear first major abortion case of Trump era

Measures like Louisiana’s are simply “arbitrary ways to make it harder for patients to obtain abortions. It’s effectively a sham and should be struck down.” — CAC Civil Rights Director David Gans

The Supreme Court on Wednesday will hear a challenge to a Louisiana abortion law, which could see the justices revisit their rulings on the controversial issue since the landmark decision of Roe v. Wade.

The dispute is the first abortion rights case since President Trump‘s two nominees shifted the court’s balance to the right, and comes as election-year politics have intensified the debate over a woman’s right to terminate an unwanted pregnancy.

The Louisiana law requires that doctors who perform abortions be able to admit patients to a local hospital. In recent years, the court struck down a similar Texas law, with Justice Anthony Kennedy joining the reliably liberal bloc.

In that 2016 case, Whole Woman’s Health v. Hellerstedt, the court ruled 5-3 that the Texas law placed an unconstitutionally heavy burden on a woman’s right to abortion.

Since then, however, Trump has transformed the Supreme Court’s ideological composition. Kennedy, formerly the court’s swing vote, was replaced with Justice Brett Kavanaugh, who along with Trump’s other nominee, Justice Neil Gorsuch, has tilted the court in a decidedly more conservative direction.

That change has anti-abortion activists hopeful that the court will reverse Roe. In January, more than 200 members of Congress, including two Democrats, signed on to a brief asking the court to “revisit” that decision.

On the other side of the debate, Democrats and abortion rights advocates have voiced alarm over how the conservative court may rule, warning that they may gut abortion protections.

June Medical Services v. Russo, the Louisiana case the justices will take up, arose from a challenge to a 2014 law passed by the state’s Republican-led legislature. Known as Act 620, 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 practiced 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.

Admitting privilege laws, a form of what are sometimes referred to as targeted regulation of abortion providers, or TRAP, laws, have proven highly divisive.

Supporters paint the laws as important to guarantee the health and safety of patients.

Katie Glenn, a lawyer with the anti-abortion rights group Americans United for Life, which filed briefs in support of Louisiana, said such measures ensure that a single doctor can provide their patient with a full spectrum of care.

“It’s important that as the patient you have continuity of care, that you’re admitted without going through and sitting in the waiting room,” she said. “Your doctor can take you straight to the hospital and continue to care for you in that emergency situation.”

The Trump administration, in its brief to the court, urged the justices to narrow or even overturn its 2016 ruling that struck down the Texas law on admitting privileges.

But critics, who include the American Medical Association and the American College of Obstetricians and Gynecologists, say abortion is a generally safe procedure and that admitting privilege laws are unnecessary.

David Gans, an attorney with the Constitutional Accountability Center which supports the challengers, said measures like Louisiana’s are simply “arbitrary ways to make it harder for patients to obtain abortions.”

“It’s effectively a sham and should be struck down,” said Gans, the lead author of his organization’s amicus brief.

At Wednesday’s oral arguments, court watchers from across the political spectrum will be looking for signs on whether the newly composed bench seems more inclined to hew to precedent or take a less hostile approach to admitting privilege laws.

When the Supreme Court confronted the virtually identical measure from Texas in the 2016 case, Whole Woman’s Health v. Hellerstedt, liberal Justice Stephen Breyer wrote the opinion for the majority.

Breyer said the statute’s medical benefits were not enough to justify the burdens they placed on a woman’s right to abortion.

“Each (provision) places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution,” Breyer wrote.

Joining the majority opinion were Kennedy, who has since retired, as well as the court’s reliably liberal justices Ruth Bader GinsburgSonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented.

The following year, a federal district court in Louisiana, applying the Supreme Court’s guidance in Hellerstedt, ruled that Louisiana’s Act 620 was unconstitutional. But the next year a federal appeals court reversed that decision.

In upholding the Louisiana law, the Fifth Circuit Court of Appeals found it had not led to a dearth of abortion providers, as Texas’ law had done.

“Here, unlike in Texas, the Act does not impose a substantial burden on a large fraction of women under Whole Woman’s Health v. Hellerstedt and other controlling Supreme Court authority,” the appellate court wrote, distinguishing the Louisiana and Texas cases.

Legal experts say the Supreme Court may have more difficulty breaking with its 2016 decision in Hellerstedt, because of the striking similarities between the Texas and Louisiana laws.

If the court were to break with precedent, critics would point the finger at the court’s conservative shift under Trump.

Legal watchers say Chief Justice John Roberts will want to avoid any hint that the court’s ruling is based on ideology or politics.

“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 before July, just months ahead of Election Day.

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