The U.S. Supreme Court has struck a Louisiana anti-abortion law nearly identical to one deemed unconstitutional in Texas four years ago, in a landmark ruling for abortion rights. The law was expected to decimate abortion access in the state — shutting at least two of the state’s last three clinics, or perhaps all three.
The court’s narrow 5-4 decision in June Medical Services v. Russo hinged on the support of Chief Justice John Roberts, a conservative, to strike down Act 620, a 2014 law that required doctors at abortion clinics to obtain hospital admitting privileges within 30 miles of the clinic where they worked.
Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor joined the majority opinion written by Justice Stephen Breyer, which portrayed the entire case as a do-over of a Texas law that the court had struck down only four years ago. But Roberts wrote his own concurring opinion that made it clear he was ruling based on the respect for precedent.
Both Justices Neil Gorsuch and Brett Kavanaugh — the two appointments made by President Donald Trump — dissented.
The decision marks a double win for reproductive rights advocates. Not only was Louisiana’s law struck down, but the court found that abortion providers do have the legal standing to sue over state laws on behalf of their patient’s constitutional right to an abortion. The latter decision is profound, protecting dozens of ongoing federal cases and shoring up the reproductive rights movement’s ability to fight state laws.
Staff at Hope Medical Group for Women, the plaintiff in the case, were thrilled, grinning behind their masks, said Kathaleen Pittman, the clinic’s administrator.
“Six years — six very, very long years. To say we're elated hardly begins to come close to what we’re feeling,” Pittman said. “It’s nuts around here.”
Abortion patients had been checking in at the clinic starting at 9 a.m, just a few minutes before the court released its decision. The staff are “just trying to calm down so they can take care of patients.”
“This is what we do. No matter what, we keep on keepin’ on,” she said.
Pittman said she’d been increasingly worried about the pending decision in the months after March 4, when the case was argued before the court in Washington. This month is the clinic’s 40th anniversary, a celebration that had been put on hold as the justices weighed the case.
But abortion-rights advocates see the case as a short-term win.
“Truth be told, we won this battle, but we haven't won the war,” Pittman said.
Nancy Northup, the president and CEO of the Center for Reproductive Rights, a legal nonprofit that represents the Hope clinic in the June Medical case and other ongoing lawsuits, called the decision a “victory,” but one that “never should have gotten this far.”
“The fact that we had to go all the way up to the Supreme Court again [shows] just how hard it is and how much we have to keep fighting,” she said. “And we can't take anything for granted when it comes to the protection of abortion rights under the Constitution.”
Attorney General Jeff Landry, one of the state’s most prominent anti-abortion politicians and the face of Lousiana’s defense of the law, slammed the court’s ruling.
“Today, the Supreme Court continued its heartbreaking line of decisions that places ‘access’ to abortion above the health and safety of women and girls,” he said in a statement.
Gov. John Bel Edwards, an anti-abortion Democrat who’s signed every anti-abortion law that has crossed his desk, said he has “advocated for the protection, dignity and sanctity of life and will continue to do so.”
“While I voted for the law in question and am disappointed, I respect the U.S. Supreme Court’s decision and trust that Louisiana and our nation will continue to move forward,” Edwards said in a statement.
Sen. Katrina Jackson, a Democrat from Monroe who authored Act 620 when she was a member of the Louisiana House, said she was “holistically disappointed” by the decision.
“They ruled against women's healthcare. I am just deeply saddened,” Jackson said.
What the majority said about the admitting privileges requirement
Louisiana’s legislature took up the idea of an admitting privileges law in 2014, modeling it “nearly word-for-word,” Justice Stephen Breyer wrote in the plurality opinion, on a Texas admitting-privileges requirement that had already forced the closure of half of that state’s abortion clinics.
Texas’s law was later struck down by the Supreme Court as an unconstitutional burden on the right to an abortion in the 2016 case Whole Woman’s Health v. Hellerstedt. In that case, the court found the law provided no medical benefit but did dramatically decrease access to abortion services.
In 2017, a district court found Louisiana’s law unconstitutional, and that it would close two of Louisiana’s last three abortion clinics, leaving a single provider for the approximately 10,000 abortions per year in the state. One year later, the Fifth Circuit Court of Appeals reversed that decision. In a bid to protect Louisiana’s clinics from closure, Hope appealed to the Supreme Court in 2019.
Louisiana argued the law protects women’s health by forcing doctors working at abortion clinics to comply with regulations already in place for other outpatient surgical centers. It argued the regulation provided a credentialing function for doctors providing abortions, which the state painted as unqualified. And it argued that abortion providers — most of whom could not, over a year-and-half long period, obtain the necessary privileges — simply hadn’t tried hard enough.
The court’s four liberal justices rejected all of these arguments. In a rebuke of Louisiana’s entire reasoning, Breyer’s opinion found no daylight between Texas’s and Louisiana’s laws, nor their impact. Instead, it agreed with the district court that on every point, stating that the facts in Louisiana's case “mirror those made in Whole Woman’s Health in every relevant respect and require the same result.”
“The District Court found that the statute offers no significant health benefit,” Breyer wrote. “It found that conditions on admitting privileges common to hospitals throughout the state have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the state’s asserted interests in promoting women’s health and safety.”
In his concurring opinion, Roberts noted that he “joined the dissent in Whole Woman’s Health and continue[s] to believe that the case was wrongly decided.” But, he added, “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
On that point, the Chief Justice was unequivocal: “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
What the majority said about third-party standing
When the Supreme Court agreed to hear an appeal in 2019, Louisiana raised the question of whether abortion doctors even had the legal standing to sue over the law. This — the issue of third-party standing — is crucial for abortion jurisprudence. Those who are pregnant and don’t want to face significant obstacles to bringing lawsuits like this one: years of legal battles that mean a decision would come long after an abortion was actually needed. So, instead, abortion providers often sue over state laws, including laws, like Louisiana’s, that regulate how they operate.
Here again, five of the justices dismissed Louisiana’s argument. Not only did the state waive this argument earlier in the proceeding, but “we have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations,” Breyer wrote in the majority opinion.
“If anything is clear about today's decision, it is that abortion providers continue to have standing to bring these cases and vindicate the constitutional rights of their patients,” said T.J. Tu, a lawyer with the Center for Reproductive Rights.
But Dorinda Bordlee, one of the law’s creators, disagreed. Bordlee is vice president of the Bioethics Defense Fund, an anti-abortion group, and a lawyer on contract with the Louisiana Health Department to defend its abortion regulations. She said the fact that Louisiana raised the question late in litigation was a sign that another case could challenge this point from the outset, and perhaps reach a different conclusion.
“So that means that this issue of third party standing is still alive,” she said.
“By the skin of our teeth”: Abortion rights groups celebrate, for now
The ruling was met with relief and joy among Louisiana’s reproductive rights groups.
“I'm telling you, I've been on pins and needles since February, since we had to go to the Supreme Court for the evidence to be presented,” said Lakeesha Harris of Women With A Vision, a reproductive justice group in the state. She said the narrow 5-4 ruling was a victory “by the skin of our teeth, but we did make it.”
The decision came as a relief amid a pandemic that has disproportionately killed Black and Hispanic people in the U.S. and taken the lives of members of her own family.
“We're taking a moment for deep breaths, deep reflection and joy,” Harris said.
Harris and Pittman underlined that the ruling most protects abortion access for marginalized groups, people with low incomes or people facing other barriers. It’s not just the $500 to $1,500 an abortion often costs in the state, but also the time, transportation, childcare or hotel stays often needed to get to a clinic and comply with the state’s 24-hour waiting period.
That “money trail” is important, Harris added.
“It's black women who are making the least in this state,” she said.
Michelle Erenberg, a prominent voice against abortion restrictions at the Capitol, said her overriding feeling was one of gratitude.
“I knew that we had the facts on our side. But I also was very clear about what the majority of the conservative justices on the court thought about abortion rights,” she said.
Erenberg is the executive director of Lift Louisiana, which itself is part of a state-wide network of groups advocating for reproductive justice — policies that seek to support the range of reproductive health choices, including raising families.
“The bottom line is that it's a victory for now,” she said. “While it blocks this law from going into effect, it's not going to stop anti-abortion politicians from passing future laws.”
Act 620’s likelihood of shutting down abortion clinics made it the most severe lawsuit Hope has been fighting against the state of Louisiana, but it’s not the only one. The clinic has other ongoing lawsuits, including one against half a dozen anti-abortion laws passed in 2016 and another against a slew of rules enacted by the health department.
“This week, we're winning the battle and that means we can stay open to fight another day,” Pittmant said. “As a provider, I’ll tell you, I'm celebrating today but I'm still worried about our future.”
The decision represents a kind of holding-the-line for abortion access. As a do-over of Texas’s 2016 case, the Louisiana ruling simply keeps the status quo in place.
“The win today preserved access, but it does not expand access,” noted Julie Rickelman, an attorney at the Center for Reproductive Rights and the one who argued the case before the Supreme Court.
And while Hope’s lawyers painted the case as a major win, they did so with a caveat. They had been targeting the Chief Justice during oral arguments, viewing him as the persuadable vote on the court after Justice Anthony Kennedy retired. Kennedy, a conservative who sometimes broke to side with the liberal justices, had been the swing vote in the Texas case Whole Woman’s Health.
“Since Justice Roberts was in dissent in Whole Women's Health, we were very focused on getting the Chief Justice’s vote,” Northup said.
But Roberts stated that he still disagrees with Whole Woman’s Health, a concern for reproductive rights groups and an admission that Rikelman said “muddies the waters a bit and will lead to more litigation rather than less.”
Had the law been upheld, the Guttmacher Instituate, a reproductive rights research nonprofit, estimated 15 other states could enact the same regulation with the same dramatic impact of shutting down abortion clinics.
Tu said this case should dissuade states from trying a third time to get an admitting privileges law upheld by the Supreme Court: “Two strikes, you’re out.”
“This is not justice”: Anti-abortion groups slam the decision
In the wake of the decision, anti-abortion advocates and supporters of the law claimed the ruling will put women’s health in danger.
They argued the state had proven that abortion clinics in Louisiana are unsafe, despite the district court’s finding of precisely the opposite.
The record from the district court trial showed Hope had transferred patients to the emergency room just a handful of times since it opened in 1980, and that abortion in Louisiana was “extremely safe.” In their own brief to the Supreme Court, both the American Medical Association and the American College of Obstetricians and Gynecologists criticized the admitting privileges law as without medical benefit.
Anti-abortion groups also said the court’s decision usurped the authority of state lawmakers.
“It was written by women, it was the will of this state, and yet the Supreme Court, a few people, come in and strike it down,” said Angie Thomas, an attorney and the associate director of Louisiana Right to Life.
Attorney General Jeff Landry accused Roberts of “putting precedent over patients” by siding with the court’s liberal justices.
“Just four years ago, he joined the dissenters in Hellerstedt, which struck down Texas’s law,” he said in a statement. “Today, the Chief Justice openly acknowledges that case was wrong but then applies it anyway.”
He argued that because the law was “passed with nearly unanimous bipartisan support by the elected representatives of a state and with undisputed proof of dangerous conditions and substandard abortion providers,” the fact that it was struck down means “something is drastically wrong with the Court’s case law” on abortion.
“This is not justice. This is judge-made law at its worst,” Landry said.
Bordlee said the five justices in the majority substituted “their policy preferences for the will of the people.”
But she praised the dissent of Justice Clarence Thomas, who has long decried abortion-rights decisions and who would have ruled against abortion providers on the issue of third-party standing.
Roberts’s decision is being scrutinized for what it could signal for the future chances of anti-abortion laws at the Supreme Court.
For Jackson, who has become a national figure in the anti-abortion movement in the wake of this case, the one good thing has been the profile she says the case has raised about what she sees as unacceptable conditions inside abortion clinics.
“At least we've made women in Louisiana and all over the country realize it when they're walking into abortion facilities,” she said.
Copyright 2020 WWNO - New Orleans Public Radio
