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Louisiana abortion case might come down to Roberts, Kavanaugh At Supreme Court, Louisiana abortion case might come down to Roberts
(about 7 hours later)
Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh seemed key to the outcome of the Supreme Court’s consideration of a restrictive abortion law from Louisiana, with both wondering Wednesday how a 2016 decision striking down an identical law from Texas should guide their judgment. Chief Justice John G. Roberts Jr. emerged Wednesday as the pivotal, if inscrutable, key to whether a more conservative Supreme Court is ready to reconsider its precedents protecting abortion rights.
With the court’s four liberals appearing convinced that the Louisiana law is unconstitutional, Roberts could cast the deciding vote in the court’s first examination of abortion since President Trump’s two nominees joined the bench. The court’s four liberals appeared convinced that the Louisiana law at issue, requiring admitting privileges at nearby hospitals for abortion-clinic doctors, is identical to one from Texas that the Supreme Court struck down four years ago.
He asked a variation of the same question at least three times: Should the court undertake a fact-dependent, state-by-state review when examining a law’s restrictions? He did not indicate that he had made up his mind on the question. That appeared to leave Roberts, now at the court’s ideological center, holding the deciding vote.
The justices are examining whether the state’s 2014 law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals unduly burdens women’s access to abortion. Practitioners claim, and a federal judge agreed, that the law could force two of the state’s abortion clinics to close, leaving only one doctor to perform the procedures. Supreme Court’s abortion test comes from state that has passed most restrictions
Supreme Court’s abortion test comes from state that passed most restrictions As the case was argued, he asked a variation of the same question to all three lawyers addressing the justices: Should the court undertake a fact-dependent, state-by-state analysis when reviewing such restrictions?
Abortion providers say the case is a test of the court’s commitment to honor precedent: The law is practically identical to a Texas law struck down by the Supreme Court in 2016. Now-retired justice Anthony M. Kennedy joined the court’s four liberals to form a majority in what was its most important endorsement of abortion rights in 25 years. That could indicate he felt he could distinguish Louisiana’s law from the Texas statute. Or it could mean he agreed with challengers that similar laws were doomed because of the court’s precedent from 2016. Roberts, a dissenter in the Texas case, did not indicate what he believed was the proper answer.
Since then, Trump’s choices for the court, Neil M. Gorsuch and Kavanaugh, have replaced the late Antonin Scalia and Kennedy, respectively. Both were enthusiastically supported by ­antiabortion groups. The justices’ examination of the Louisiana law could be momentous if it signaled that the court was ready to revisit past decisions. And whatever it decides before the end of June will come in the midst of a heated presidential election in which Democrats have made abortion rights a priority and President Trump has said his ultimate goal is to overturn Roe v. Wade.
Gorsuch did not ask a question during the more than hour-long oral argument. Trump has said his judicial nominees will oppose abortion, and it was the first major abortion case for his Supreme Court choices, Neil M. Gorsuch and Brett M. Kavanaugh.
Kavanaugh asked the clinic’s attorney whether laws requiring abortion providers to have admitting privileges could ever be constitutional. Gorsuch did not ask a question during the hour-long oral arguments. Kavanaugh’s questioning was similar to that of Roberts, as he wondered whether different conditions in states could afford different outcomes than in the 2016 case, Whole Women’s Health v. Hellerstedt.
“Are you saying admitting privileges requirements are always unconstitutional?” Kavanaugh asked attorney Julie Rikelman, after posing a hypothetical about a state with 10 clinics and 20 doctors, all with the necessary credentials. Kavanaugh had previously voted to allow the law to go into effect, saying it was unclear whether doctors had worked hard enough to secure the privileges. “Are you saying admitting-privileges requirements are always unconstitutional, such that we don’t have to look at the facts state by state?” Kavanaugh asked attorney Julie Rikelman after posing a hypothetical about a state with 10 clinics and 20 doctors, all with the necessary credentials. Kavanaugh had previously voted to allow the Louisiana law to go into effect, saying it was unclear whether doctors had worked hard enough to secure the privileges.
Rikelman, senior litigation director of the Center for Reproductive Rights, said the justices must extend the court’s ruling in the Texas case to Louisiana’s identical law because the measure itself serves no valid medical purpose and instead imposes unconstitutional barriers to access to abortion. Rikelman, senior litigation director of the Center for Reproductive Rights, replied that “the burdens may vary, but a law that has no benefit and serves no valid state interest, which is what this court held in Whole Woman’s Health, is much more likely to be an undue burden” on a woman’s right to abortion.
Rikelman said there was a “consensus” in the medical community that the admitting privileges requirement is never beneficial. In her closing, she told Roberts that the facts did not change across the states, but that a district judge had found that Louisiana’s law was “more burdensome than Texas’s.” Kavanaugh pressed: “Could an admitting-privileges law of this kind ever have a valid purpose, in your view?”
Roberts was a dissenter in the 2016 case and has never in his tenure found that an abortion restriction went too far. “No, your honor,” Rikelman replied. “The medical consensus against these laws is clear.” Later, she noted that the federal government has dropped such a requirement from its regulations of surgery centers nationwide.
But in February 2019, he sided with the court’s four liberals in an emergency motion that kept the Louisiana law from going into effect. If the debate inside the courtroom was reminiscent of four years ago, the atmosphere inside and outside the court was emblematic of the decades that the Supreme Court has wrestled with one of the country’s most divisive issues.
Supreme Court in 5-4 vote blocks Louisiana abortion law Members of Congress packed the crowded courtroom, and lawyers who have litigated the issue from both sides filled the pews. Among Wednesday’s spectators was Roberts’s wife, Jane Roberts, who before the chief justice joined the court was legal counsel for Feminists for Life of America, a group that opposes abortion.
Roberts gave no reason for his vote. He may have questioned whether an appeals court decision to uphold the Louisiana law complied with the court’s precedent, or he could have simply wanted to maintain the status quo until the Supreme Court could consider its merits. At a rally of abortion rights supporters outside the court, Senate Majority Leader Charles E. Schumer (D-N.Y.) called out Gorsuch and Kavanaugh by name.
The question of whether the abortion providers had legal standing to bring the case was not in the 2016 case. Justice Samuel A. Alito Jr. sounded highly skeptical that clinics have legal standing, calling such a claim “amazing” because of the doctors’ potential conflict of interest. “You have released the whirlwind, and you will by the price,” Schumer said. “You won’t know what hit you if you go forward with these awful decisions.”
Schumer’s remarks prompted a rare public rebuke from Chief Justice Roberts, who issued a statement hours later calling the criticism from the highest levels of government in the midst of arguments “inappropriate” and “dangerous.”
Roberts rebukes Schumer over comments about Kavanaugh, Gorsuch
Inside the courtroom, Justice Stephen G. Breyer acknowledged the contentious public divide.
“In the country, people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong,” said Breyer, adding, “I think personally the court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.”
The justices were considering whether Louisiana’s 2014 law unduly burdens women’s access to abortion. Practitioners claim, and a federal judge agreed, that the law could force two of the state’s abortion clinics to close, leaving only one doctor at one clinic to perform the procedures.
The question of whether the abortion providers had legal standing to bring the case was not in the 2016 case. But Justice Samuel A. Alito Jr. sounded highly skeptical Wednesday that clinics have legal grounds to sue, calling such a claim “amazing” because of the doctors’ potential conflict of interest.
To reject the clinic’s right to sue, Rikelman said, would require the court to overrule at least eight past abortion-related decisions.To reject the clinic’s right to sue, Rikelman said, would require the court to overrule at least eight past abortion-related decisions.
Liberals said the court would be reversing decades of precedent to make such a finding, and the court’s other conservatives did not ask about the issue.Liberals said the court would be reversing decades of precedent to make such a finding, and the court’s other conservatives did not ask about the issue.
Abortion case provides a quick test for Supreme Court conservatives
The court could reaffirm or overturn its 2016 precedent in the Texas case, or distinguish it in a way that a restriction deemed unconstitutional in one state is allowed in another.The court could reaffirm or overturn its 2016 precedent in the Texas case, or distinguish it in a way that a restriction deemed unconstitutional in one state is allowed in another.
One change at the court: While the Justice Department in 2016 urged the court to strike down the Texas law, Trump administration lawyers will argue that Louisiana’s should be left in place, even if it means overturning the opinion in the Texas case, Whole Woman’s Health v. Hellerstedt. One change at the court: While the Justice Department in 2016 urged the justices to strike down the Texas law, Trump administration lawyers argued that Louisiana’s should be left in place, even if it means overturning the opinion in the Texas case.
The court’s majority in that decision said the admitting-privileges requirement “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.” Jeffrey B. Wall, principal deputy solicitor general, representing the Trump administration, urged the court to find that medical providers do not have a legal right to challenge the Louisiana regulations on behalf of their patients, because their respective interests are not necessarily aligned.
Hospitalization after an abortion is rare, all sides agree, and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman getting needed medical care. The court’s opinion said there are numerous reasons doctors might not be able to attain admitting privileges at a nearby hospital, including the fact that it is so rare for their clients to need hospitalization. “One is the interest of the for-profit providers and not being regulated in particular ways,” he said. “The other is the interest of women in their own health and safety.”
Wall noted that a patient who developed a complication at home after an abortion might still call the clinic to consult with her initial doctor before going to the hospital.
“It’s hard for me to believe that women in Louisiana wouldn’t at least want the option to be treated by the [same] doctor,” he said.
Most Americans want abortion to remain legal but back some state restrictions
Hospitalization after an abortion is rare, all sides agree, and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman getting needed medical care. In the court’s Texas decision, the majority said there are numerous reasons doctors might not be able to attain admitting privileges at a nearby hospital, including the fact that it is so rare for their clients to need hospitalization.
The court majority in that case also said the admitting-privileges requirement “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.”
Justice Ruth Bader Ginsburg stressed Wednesday that most women who terminate their pregnancies never get near a hospital. About 40 percent of abortions in Louisiana are completed by taking medication.
Elizabeth Murrill, Louisiana’s solicitor general, said the state’s 2014 law is intended to ensure the health and safety of women seeking abortions and distinct from the Texas law. Regulations for abortion providers, she said, are consistent with those for the state’s surgery centers — both require medical staffers to have admitting privileges.
“Even if it’s a medication abortion, the doctor should be able to handle a surgical abortion and be qualified to do that,” Murrill said, asking the court to affirm a ruling from the U.S. Court of Appeals for the 5th Circuit.
A Louisiana federal judge held a six-day trial on the law and agreed with abortion providers that the court’s decision in Hellerstedt meant that the law was unconstitutional.A Louisiana federal judge held a six-day trial on the law and agreed with abortion providers that the court’s decision in Hellerstedt meant that the law was unconstitutional.
But a panel of the U.S. Court of Appeals for the 5th Circuit — the same court that had upheld the Texas law — disagreed. The panel, on a 2-to-1 vote, found factual distinctions between how the restriction played out in Texas and Louisiana. But a panel of the 5th Circuit — the same court that had upheld the Texas law — disagreed. The panel, on a 2-to-1 vote, found factual distinctions between how the restriction played out in Texas and Louisiana.
Judge Jerry E. Smith, writing for the majority, said that the court complied with the Supreme Court’s decision by taking a painstakingly close look at the details.Judge Jerry E. Smith, writing for the majority, said that the court complied with the Supreme Court’s decision by taking a painstakingly close look at the details.
“Unlike in Texas, the [Louisiana law] does not impose a substantial burden on a large fraction of women,” he concluded.“Unlike in Texas, the [Louisiana law] does not impose a substantial burden on a large fraction of women,” he concluded.
The full 5th Circuit declined to reconsider the panel’s decision, and dissenting judges said their colleagues seemed more intent on giving the Supreme Court a chance to reverse its 2016 ruling than complying with it.The full 5th Circuit declined to reconsider the panel’s decision, and dissenting judges said their colleagues seemed more intent on giving the Supreme Court a chance to reverse its 2016 ruling than complying with it.
“I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion,” Judge Stephen A. Higginson wrote in his dissent. “The majority would not, and I respectfully suggest that the dissenters might not either.”“I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion,” Judge Stephen A. Higginson wrote in his dissent. “The majority would not, and I respectfully suggest that the dissenters might not either.”
The Louisiana case is June Medical Services v. Russo.The Louisiana case is June Medical Services v. Russo.