US Supreme Court may restrict abortion providers
Justices to hear arguments Wednesday
WASHINGTON – An hourlong oral argument Wednesday inside the Supreme Court could go a long way toward reversing abortion rights in the USA. Whether they revert by four years or 47 remains to be seen.
In 2016, the high court struck down restrictions on Texas clinics and doctors as an undue burden on women. The ruling helped abortion rights advocates beat back similar laws in other states.
A nearly identical law in neighboring Louisiana is before the court, and the prognosis for abortion opponents has improved dramatically. State officials contend the facts on the ground, as well as the legal issues, call for a different result.
There is another reason: “It’s a different court,” says Steven Aden, chief legal officer at Americans United for Life, which has fought for abortion restrictions for nearly five decades.
This is the court that three Republican presidents built, the latest being Donald Trump. Its newest associate justice, Brett Kavanaugh, replaced Anthony Kennedy, who provided the decisive vote in the Texas case that looked like a landmark in 2016. Not so much now.
Anti-abortion forces have mounted a frontal attack against the Supreme Court’s precedents, starting with the 2016 decision and dating back to Roe v. Wade in 1973, which legalized abortion nationwide.
Even as the nation’s abortion rate has dropped to its lowest level since Roe was decided, the rapid-fire enactment of state laws imposing restrictions promises to generate more lawsuits headed the high court’s way. Disputes focus on the timing and type of abortions, regulations on clinics and doctors, requirements for patients – even the sex, race or disability of the fetus.
“The Supreme Court could really start to unroll abortion rights,” says Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a reproductive rights think tank.
That would extend a trend of abortion clinic closures that has slashed the number of independent clinics by onethird in the past eight years, from 510 in 2012 to 344 last year, according to the Abortion Care Network. Five states – Mississippi, Missouri, North Dakota, South Dakota and West Virginia – each are down to one clinic.
Louisiana, which leads the nation with 89 abortion restrictions passed since 1973, has three clinics left, in New Orleans, Baton Rouge and Shreveport. A federal district court judge determined that the law under challenge, which mandates that abortion providers have admitting privileges at nearby hospitals, could force two out of business.
Kathaleen Pittman, the longtime administrator of Hope Medical Group for Women in Shreveport, says, “Roe becomes meaningless if there is no access to abortion.”
‘Two different Americas’
Access depends on where you live. That’s the concern for abortion rights advocates in the South and Midwest.
Twenty-five states dominate the statute books when it comes to “TRAP laws,” or targeted restrictions on abortion providers. Court challenges are pending in many of them, including Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, Texas and Wisconsin.
Last year, states enacted 58 restrictions and 36 measures making abortion more accessible, the Guttmacher Institute reported. While mostly “red” states sought to block abortions after a certain number of weeks and impose limits on patients and providers, “blue” states went in the other direction.
Last week, Virginia repealed decades-old restrictions, including 24hour waiting periods and mandatory ultrasound tests. The Trump administration is battling California over its requirement that most health plans cover abortion services. New York, Illinois, Washington, Oregon and Maine have similar laws.
“What’s emerging here is what I think of as two different Americas,” says Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which operates seven clinics in five states and was the winning plaintiff in the Texas case.
In that case, the court ruled 5-3 that a law requiring that doctors have hospital admitting privileges and clinics meet surgical center standards imposed hardships on women without serving any medical purpose.
When the law was enacted, only six of the state’s 44 abortion clinics met the new requirements. A court injunction allowed about 20 to remain open, but even after the high court victory, most of those that closed their doors never reopened.
The Supreme Court’s decision in the case made it more difficult for other states to impose restrictions without providing medical or scientific evidence. Judges extended the court’s reasoning to other restrictions, such as limits on voting rights.
In Louisiana, state legislators and government officials argued that the admitting privileges requirement would not have such a severe impact. When the justices refused last February to let the law take effect while legal challenges continued, Kavanaugh said that contention was worth testing. Chief Justice John Roberts joined the court’s four liberal justices in blocking the law.
“We have no reason to believe that any clinic would close,” says Louisiana Solicitor General Elizabeth Murrill, who will argue the case Wednesday.
The state, backed by the Trump administration and scores of anti-abortion groups, contends the law is aimed at improving health and safety measures at abortion clinics. “We shouldn’t be substituting safety for access,” Murrill says.
Julie Rikelman of the Center for Reproductive Rights, who will argue the other side Wednesday, says hospital privileges are elusive for physicians who provide abortions and unnecessary when just 1 in 400 patients needs hospitalization.
Abortion rights advocates point out that most of the nearly 10,000 women seeking abortions in Louisiana annually are poor and unable to travel long distances for the overnight stays state regulations require.