Supreme Court Hears Arguments on Louisiana Abortion Law

Justices Neil Gorsuch and Brett Kavanaugh—the newest justices on the bench who could be deciding votes in a 5-4 case—said little on Wednesday, with Justice Samuel Alito being the most vocal member in questioning the abortion clinic’s case against the law.

United States Supreme Court in Washington, D.C.
United States Supreme Court in Washington, D.C. (photo: Unsplash )

WASHINGTON, D.C. — The Supreme Court heard arguments on Louisiana’s Unsafe Abortion Protection Act on Wednesday, as justices questioned lawyers from both sides on the state’s safety regulations for abortion facilities, including a requirement that abortion doctors have admitting privileges at a local hospital.

The court met March 4 to hear oral arguments in the case of June Medical Services v. Russo. As justices probed the necessity of the state’s requirements, outside the court an advocate for post-abortive women took issue with the justices’ skepticism toward the law.

Cynthia Collins, founder of the Louisiana Abortion Recovery Alliance, and herself a post-abortive woman, told CNA after arguments that the justices “were trying to silence our voices, of the women that have been hurt by abortion.”

“And their voices are the same as the abortionists, to get up, get out, and stay silent, when we’ve been injured by abortion,” she said.

The Louisiana law (Act 620) was enacted in 2014 and requires that abortionists in the state have admitting privileges at a hospital within 30 miles in case of complications that may arise during or after the procedure. The law would hold abortion facilities to the same safety standards that apply to other medical facilities in the state.

The Shreveport abortion facility Hope Medical Group for Women sued, saying the regulations posed an undue burden on the ability of women to have an abortion.

A district court first issued a restraining order on the enforcement of the law’s penalties. Then, in 2016, the court issued a preliminary injunction on the law. Later that year, after the Supreme Court later struck down a similar Texas law in Whole Woman’s Health v. Hellerstedt, the district court permanently enjoined Louisiana’s law from going into effect.

That decision was reversed by the U.S. Fifth Circuit Court of Appeals which said that the law posed a benefit to women’s health and did not put substantial burdens on abortion in the state.

Unlike in Texas where most facilities closed because of its law, “only one doctor at one clinic is currently unable to obtain [admitting] privileges” in Louisiana, the Fifth Circuit said. 

Reviewing the evidence of the case before the district circuit, the Fifth Circuit also found that some abortionists did not try hard enough to obtain admitting privileges at hospitals.

The case went to the Supreme Court, and more than 200 members of Congress signed an amicus brief in favor of the law. Rep. Dan Lipinski, D-Ill., who is facing a tough primary battle against a pro-abortion opponent, signed the brief, an act his opponent Marie Newman highlighted in an attack against him.

Wednesday’s arguments focused on two main questions—on whether an abortion facility, rather than women in the state, has “third-party standing” to bring such a case before the Court, and whether the admitting privileges requirements violate the Constitution by imposing a substantial burden on legal abortion rights.

Justices Neil Gorsuch and Brett Kavanaugh—the newest justices on the bench who could be deciding votes in a 5-4 case—said little on Wednesday, with Justice Samuel Alito being the most vocal member in questioning the abortion clinic’s case against the law.

The “third-party standing” question referred to the legitimacy of abortion faciities, instead of women of the state, arguing before the Court that the law would substantially burden abortion.

Elizabeth Murrill, Louisiana’s Solicitor General arguing in favor of the law, said that “these doctors should not be able to challenge regulations intended to protect a certain class of people.”

The attorney representing June Medical Services, L.L.C., defended the rights of abortion facilities to bring “third-party” lawsuits against state laws, even if a conflict of interest might exist between the facility’s desire to do business and the safety of women they claim to represent.

Justice Alito called the argument “amazing.” 

“You think that if the plaintiff actually has interests that are directly contrary to those individuals on whose behalf the plaintiff is claiming to sue, nevertheless that plaintiff can have standing?”  

Justice Ruth Bader Ginsburg repeatedly asked why the admitting privileges requirement was relevant to women’s health, given that many women might experience abortion-related complications at home, after having visited a clinic, and thus would go to the hospital by themselves.

Questions also arose as to whether Louisiana’s law is substantially different from Texas regulations struck down by the Supreme Court in 2016 in the Hellerstedt case, with lawyers for the state arguing that the law was “justified by abundant evidence of life-threatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from post-abortive women, [and] testimony from doctors who took care of abortion providers' abandoned patients.”

In one case, Murrill said, an abortionist testified that he transferred four women to a hospital for abortion-related hemorrhaging. The same doctor also admitted in testimony that he hired a radiologist and an ophthalmologist to do abortions, she said, posing clear safety risks to women.

Jeffrey Wall, U.S. Principal Deputy Solicitor General who argued in support of Louisiana’s law on Wednesday, noted that the doctor’s testimony of transferring the four women to hospitals was proof that, while “often” complications might be experienced by women at their home and not at the clinic, they “sometimes” do occur while women are still at the facility.

In such cases, Wall said, the best practice would be admission to a hospital—something backed up even by the abortionist’s testimony.

Abortionists “could and did” obtain admitting privileges at hospitals, she said, but did not maintain close relationships with their patients who had to litigate their own cases involving harmful effects of abortion.

The chair of the pro-life committee of the U.S. bishops’ conference, Archbishop Joseph Naumann of Kansas City, said on Wednesday that states “have a strong interest in regulating a procedure which is lethal to children and immensely damaging to women.”

“Women, their bodies, and their babies are immeasurably valuable,” the archbishop said in a statement. “It adds insult to injury, and speaks to the callousness of the abortion industry, that providers are seeking to overturn basic, standard protections for women seeking this life-altering procedure.”

In his statement issued after Wednesday’s oral arguments, Archbishop Naumann called on Catholics to pray for the outcome.

“The Catholic Church encourages all people of faith to pray about the outcome to this very important case,” Archbishop Naumann stated on Wednesday.

“We also ask all to pray for the women who are compelled to seek abortion: that they may find alternatives that value their health and well-being, and the lives of their precious children.”