Louisiana Tests the New Supreme Court on Abortion

The Supreme Court will decide this week whether to intervene in a case that could lead to the closure of all but one abortion clinic in Louisiana, potentially leaving tens of thousands of women without meaningful access to care. It is the first of more than a dozen abortion-related cases that are moving through the system and toward the high court. Unless the court takes action, two of Louisiana’s three remaining clinics would likely shutter operations.

At issue is a state law passed in 2014 that requires abortion doctors to have admitting privileges at a hospital within 30 miles of the abortion clinics where they practice. It is identical to a law passed a year earlier in Texas — a law that was stuck down as unconstitutional by the Supreme Court in the 2016 decision in Whole Woman’s Health v. Hellerstedt.

The admitting privileges law is what is known as a targeted restriction on abortion providers, or TRAP law. Theoretically, it is designed to ensure a continuum of care in the exceedingly rare event that serious complications arise from an abortion procedure. The problem, however, is that it can be nearly impossible for abortionists to obtain admitting privileges — for example, some hospitals require a certain number of admissions as a requisite for granting privileges, but because abortion is so safe, doctors are unable to meet that threshold. (Serious complications requiring hospitalization occur in just .05 percent of first-trimester abortions.) The requirements for obtaining admitting privileges vary from hospital to hospital and can be decided based on politics alone. In Louisiana, two doctors were denied privileges precisely because they provide abortion care, according to court documents filed by the Center for Reproductive Rights, which is challenging the state law.

In Texas, the admitting privileges law in part led to the closure of roughly half of the state’s clinics. CRR challenged that law, and in 2016 the Supreme Court ruled that it could not stand. While the alleged purpose of the regulation was to protect the health and safety of women seeking care, the law did not do that. The court ruled that in order to survive a legal challenge, the actual medical benefit of such a restriction must outweigh the burden it places on abortion access.

While both the Texas and Louisiana laws were making their way through the legal system, a federal district judge in Louisiana blocked that state’s law in a meticulous 112-page ruling. “Without an injunction, Louisiana women will suffer significantly reduced access to constitutionally protected abortion services, which will likely have serious health consequences,” Judge John W. deGravelles concluded in January 2016, roughly five months before the Supreme Court would rule in the Texas case. “The substantial injury threatened by enforcement of the Act — namely irreparable harm to women and the violation of their constitutional rights — clearly outweighs the impact of an injunction” on the state.

Louisiana appealed the ruling to the 5th Circuit Court of Appeals, the intermediate court that handles appeals coming out of Texas, Mississippi, and Louisiana — the same court that ultimately concluded that Texas’s restriction passed legal muster before being slapped down by the Supreme Court. The Texas law, the high court ruled in the Whole Woman’s Health case, “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”

Theoretically at least, that should have signaled the fate of the Louisiana law. Instead, in a confounding opinion, the majority of a three-judge panel of the 5th Circuit in late September 2018 upheld the Louisiana law. In invalidating the measure, the district court had “overlooked that the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute,” the 5th Circuit Court wrote, and placed the blame for whatever clinics might close squarely on the abortion doctors who the court decided simply had not worked hard enough to secure privileges.

In a strenuous dissent, Senior Circuit Judge Patrick Higginbotham called out his colleagues, writing that the “divergence between the findings of the district court and the majority is striking — a dissonance in findings of fact inexplicable to these eyes.” The ruling, he wrote “ought not stand.” The Center for Reproductive Rights asked the full court to reconsider the panel’s decision, but on a 9-6 vote, the court declined. All four of President Donald Trump’s appointees to the 5th Circuit voted against rehearing the case.

On January 25, CRR took its case to the Supreme Court, asking it to intervene and reverse the appellate court decision. Without action from the court, the law would have taken effect on February 4, leaving a single clinic and doctor left in the state to provide care for the roughly 10,000 women who annually seek abortion in the state, a clearly impossible situation. There are nearly 1 million women of reproductive age in the state.

Late on Friday, February 1, Justice Samuel Alito filed a brief order, staying the case until February 7 to allow the court time to review the court filings. The order, he wrote, does not reflect “any view” on the merits of the case.

The case is the first of nearly 30 involving reproductive rights that are making their way through the court system and will likely signal what direction the new court — now with two Trump appointees — will take in deciding challenges to women’s reproductive autonomy. Indeed, Trump long ago promised that he would appoint only “pro-life” judges to the bench who would be willing to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide. While the Louisiana case is unlikely to upset Roe, it could reveal the court’s willingness to chip away at the right to abortion by upholding medically unnecessary restrictions that have been passed by dozens of states across the country.

In a stinging op-ed published last week in the New York Times, Nancy Northup, head of the Center for Reproductive Rights, called out the 5th Circuit for going “rogue,” and warned of dire consequences if the high court fails to follow precedent and allows the Louisiana law to stand. “Anti-abortion politicians are hoping that the Supreme Court will stand by and let them legislate abortion out of reach — without the court ever having to reverse Roe v. Wade and related cases assuring access to abortion. That would be death to Roe by a thousand cuts,” she wrote. “The rule of law is on the line, and so is the ability of women in Louisiana and beyond to make their own health decisions and control their own fate.”

Update: Feb. 8, 2019

The Supreme Court, late on February 7, blocked the Louisiana law from taking effect. On a 5-4 vote, with Chief Justice John Roberts voting with the court’s more liberal wing, the court issued a stay in order to give the Center for Reproductive Rights, which represents the Louisiana abortion providers, a chance to petition the court for full review of the case. If the court accepts that petition it would likely put the case on its docket for the term beginning in October. If the full court ultimately declines review, the lower court ruling would stand, and the law would take immediate effect. Notably, newly seated Justice Brett Kavanaugh penned a dissent, claiming that allowing the law to take effect now was unlikely to impact any women seeking abortion care in the state.