Justices give few hints on how they will rule on abortion law
A Supreme Court argument in a major abortion case Wednesday yielded few clues about whether the justices are prepared to uphold a Louisiana law that its opponents say would leave the state with only one doctor in a single clinic authorized to provide abortions.
The members of the court who may hold the key votes — Chief Justice John Roberts and Justice Brett Kavanaugh — focused their questions on whether they were bound by a 2016 decision that struck down an identical Texas law.
The chief justice, for instance, wanted to know if “the results could be different in different states.”
Only Justice Samuel Alito asked questions consistently supportive of the Louisiana law. Justices Clarence Thomas and Neil Gorsuch asked no questions.
The court’s four liberal members appeared united in their opposition to the law. Justice Stephen Breyer said the very divisiveness of the societal debate over abortion argued in favor of respect for precedent.
“People have very strong feelings,” he said. “The court is struggling with what kind of rule of law do you have in a country that has both kinds of people.”
“Why depart,” he asked, “from what was pretty clear precedent?”
The arguments were the court’s first sustained consideration of abortion since President Donald Trump’s appointments of Gorsuch and Kavanaugh shifted the court to the right, with a ruling expected in June. The case is very likely to yield an unusually telling decision, one that could reshape the constitutional principles governing abortion rights and ripple through the presidential campaign.
The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. Only two doctors in Louisiana have been able to meet the requirement, the law’s challengers say, and one testified that he could not handle his clinic’s work alone.
Kavanaugh asked whether the requirement offered any benefits to women seeking abortions and whether, if it did not, that should be the end of the matter.
“Are you saying,” he asked Julie Rikelman, a lawyer with the Center for Reproductive Rights, “that admitting privilege requirements are always unconstitutional such that we don’t need to look at the facts state by state?”
Rikelman said the requirement did not protect women’s health. “These laws have no medical benefits whatever and only impose barriers to abortion,” she said.
Lawyers for Louisiana and the federal government defended the law, saying it provided needed protections, and they urged the court to scrutinize the facts on the ground in Louisiana.
In 2016, the court struck down an identical Texas law. The vote in that case was 5-3, with Justice Anthony M. Kennedy, now retired, joining the court’s four-member liberal wing to form a majority. The case was decided by an eightmember court after the death of Justice Antonin Scalia that February. Since then, Trump appointed Gorsuch to succeed Scalia and Kavanaugh to succeed Kennedy.
Supporters of the admitting-privileges law say it protects the health and safety of women seeking abortions and helps ensure the competence of doctors.
Opponents say the law’s real purpose is to make it harder for women to get abortions.
Doctors who perform abortions often are unable to obtain admitting privileges for reasons unrelated to their competence, the law’s critics say, and the privileges themselves do not make abortions safer, as hospitalizations after abortions are rare and women receive medical care at hospitals regardless of whether their doctors have admitting privileges.
A divided three-judge panel of the federal appeals court in New Orleans upheld the Louisiana law in 2018 notwithstanding the Texas decision, saying that the law’s benefits outweighed the burdens it imposed.