Supreme Court may rule narrowly on Louisiana abortion law

The Supreme Court heard its first abortion case with President Trump’s two new conservative appointees on Wednesday, but the conservative justices sounded as though they might move cautiously rather than issue a broad ruling on the issue.

The justices focused their questions on how specifically a Louisiana law requiring doctors who perform abortions to have hospital admitting privileges would affect women and clinics that perform the procedure.

Four years ago, the court by a 5-3 vote struck down a nearly identical law in Texas.

“This case is about this court’s respect for precedent,” Julie Rikelman, a lawyer for the Center for Reproductive Rights, told the justices. If the state’s law took effect, “it would leave Louisiana with just one clinic and one doctor providing abortions,” she said. And it “would do nothing for women’s health.”

But Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, who likely hold the deciding votes, suggested that precedent alone would not determine the outcome.

Roberts said the facts of each case may differ and therefore “the results would be different in different states.”

Even though the high court had struck down the similar Texas law as unconstitutional, the U.S. 5th Circuit Court of Appeals in New Orleans upheld the Louisiana law on the grounds that the admitting-privileges rule would have less effect in Louisiana.

Kavanaugh agreed with Roberts, saying the issue was not simply whether admitting privileges by themselves are improper, but whether they impose an undue burden. If, for example, all doctors in a state obtained admitting privileges, would a requirement on abortion providers still be unconstitutional, he asked. “Could you say that the law still imposes an undue burden, even if there is no effect?”

Rikelman conceded that would be a harder case to win. She stressed, however, the admitting privileges rule “has no medical benefits whatsoever.” It extends to doctors who do no surgery but simply dispense pills that induce an abortion, she said. And its impact in Louisiana “would be severe. It would leave only one physician to serve 10,000 people per year in the entire state.”

Roberts also pressed Elizabeth Murrill, Louisiana’s solicitor general, on the rule’s supposed benefits. In 2016, the court decided that the admitting-privileges rule in Texas provided no or minimal benefit to women. Roberts suggested that health benefits of admitting privileges would be the same for Louisiana.

“The impact might be different in different places,” Roberts said, “but as far as the benefits of the law, that’s going to be the same in each state, isn’t it?”

Murrill disagreed and tried to argue the benefits of the law, but she ran into skeptical questions from the court’s liberals, led by Justices Sonia Sotomayor and Ruth Bader Ginsburg.

They pointed to the difficulties abortions providers have encountered in obtaining privileges in many cases. They noted, for example, that some doctors had obtained privileges at a hospital in New Orleans or a medical center in Baton Rouge, but could not do the same in the Shreveport area, where the Hope Medical Group is the only provider of abortions.

Rikelman said a woman could be forced to drive 320 miles to New Orleans to see the same physician who could not see her in Shreveport.

In his comments, Roberts suggested the court must weigh the benefits and burdens of the Louisiana law and decide then whether it would put an “undue burden” on abortion rights. This could lead to a relatively narrow ruling in the case of June Medical Services vs. Russo.

The justices could uphold the Louisiana admitting-privileges rule because it poses less of a burden than it had in Texas or strike it down on the grounds that it provides no real health benefits. Neither would require a broad pronouncement on the right to abortion.

Roberts is a conservative who has voted repeatedly to uphold restrictions on abortion. But he has also been concerned about the court moving too far and too fast on a highly controversial issue. Early last year, he cast a vote with the four liberal justices to keep the Louisiana law on hold while the justices took time to review the case.

If the justices are closely split and uncertain how to rule, they could send the case back to Louisiana for a judge to take a closer look at the actual difficulties some doctors had in obtaining admitting privileges. Kavanaugh had proposed this approach last year when the appeal first arrived.

The court had also agreed to decide whether doctors and their clinics had standing to sue in court on behalf of their patients. In the past, Justice Clarence Thomas has raised this concern.

It’s an issue that could have wide implications on the ability of abortion rights advocates to challenge laws across the country since women seeking abortions can’t wait for the resolution of a long legal fight. Neither Roberts nor Kavanaugh focused their questions on that issue.

Only Justice Samuel A. Alito Jr. pressed the issue during Wednesday’s argument. If “there is a real conflict of interest” between doctors and their patients, why should doctors or the clinics have standing to sue on their behalf, he asked.

But Justice Stephen G. Breyer interjected to note that the court for 40 years has upheld the principle that doctors and health clinics may go to court to protect the rights of their patients. Changing course now, he said, “would require either directly or indirectly overruling eight cases of this court.”

A ruling could be handed down by late June.