WASHINGTON—A Louisiana law that requires abortionists to have hospital admitting privileges close to where the procedure takes place should be upheld because it protects women’s health, the state’s solicitor general told the Supreme Court on March 4 as protests raged outside.
Oral arguments came in the case, June Medical Services LLC v. Russo, as partisan, election-year rancor rose to a fever pitch outside the courthouse.
At a morning pro-abortion rights rally beside the courthouse steps, Senate Minority Leader Chuck Schumer (D-N.Y.) promised unspecified retribution against conservative justices Neil Gorsuch and Brett Kavanaugh should they vote to uphold the law under challenge.
“They’re taking away fundamental rights,” Schumer said as the case was being argued inside. “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind!
“And you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
Chief Justice John Roberts released a statement in the late afternoon condemning Schumer’s remarks.
“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said.
“All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”
It was unclear if the justices knew about Schumer’s tirade while the hourlong court hearing was underway. During it, Kavanaugh asked questions of lawyers, but Gorsuch remained silent.
The Trump administration sides with Louisiana in the litigation.
Louisiana asserts that its admitting privileges law screens out incompetent physicians and promotes good health by making sure a patient who suffers complications can be promptly admitted to a nearby hospital.
“Louisiana’s decision to require abortion providers to have admitting privileges was justified by abundant evidence of life-threatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from post-abortive women, testimony from doctors who took care of abortion providers’ abandoned patients,” Louisiana Solicitor General Elizabeth Murrill told the justices during oral arguments March 4 before the more liberal justices grilled her over the facts of the case.
The unhygienic, unsafe practices in some of the nation’s lightly regulated abortion clinics came to light during the trial of Philadelphia abortionist Kermit Gosnell. In 2013, Gosnell, whose clinic was filled with blood-covered furniture and dirty medical instruments, was sentenced to life imprisonment on three counts of first-degree murder for stabbing three babies born alive with scissors.
Abortion rights advocates counter that the law is an unconstitutional sham intended to chip away at abortion rights established in 1973’s Supreme Court ruling in Roe v. Wade, and an example of what they call a “TRAP” law that imposes “targeted restrictions on abortion providers.” They say such laws make it more difficult to provide abortions, without actually making them safer.
They also say the law puts Louisiana in the position of having just one functioning abortion clinic. State officials deny that, saying the law might only lead to brief delays at one of three abortion-offering clinics in the state.
The statute was upheld 2–1 by the 5th Circuit Court of Appeals in September 2018. “There is no evidence that any of the clinics will close as a result of the Act,” the court stated in its decision.
Enacted in 2014, Louisiana’s Act 620 requires an abortion-providing medical doctor to have “active admitting privileges”—meaning the physician is a member of the hospital’s medical staff and has the ability to admit patients and provide diagnostic and surgical services—at a hospital within 30 miles of where an abortion is provided. Violations can be punished with imprisonment, fines, and license revocation.
The case at hand resembles the 2016 Whole Woman’s Health v. Hellerstedt case in which the Supreme Court struck down a similar Texas law in a 5–3 ruling. In that case, then-Justice Anthony Kennedy, a frequent swing voter on the court, was part of the majority voting bloc. He has since been replaced by the more conservative Kavanaugh.
Act 620 was modeled after HB 2, the Texas law the court invalidated.
But Louisiana participated in oral arguments at a disadvantage. By a 5–4 vote on Feb. 7, the Supreme Court temporarily stayed enforcement of Act 620, a move suggesting most of the justices already believed the law might be unconstitutional. Chief Justice John Roberts, part of the conservative bloc on the court, joined with four liberal justices in that vote.
During oral arguments, the lawyer for abortion provider June Medical Services, which does business as Hope Medical Group for Women, said the court was bound to follow recent precedent.
“This case is about respect for the Court's precedent. Just four years ago, the Court held in Whole Woman's Health that the Texas admitting privileges law imposed an undue burden on women seeking abortions,” said Julie Rikelman of the Center for Reproductive Rights.
“The Louisiana law at issue here, Act 620, is identical to the Texas law and was expressly modeled on it. After a trial, the district court ruled Act 620 unconstitutional, finding no material differences between this case and Whole Woman's Health. On burdens, it found that Act 620 would leave Louisiana with just one clinic and one doctor providing abortions. At the same time, it found that Act 620 would do nothing for women's health.”
Nothing has changed since the earlier decision, she said, that would justify “a legal about-face.”
Justice Samuel Alito was skeptical of Rikelman’s submissions, suggesting her client lacked legal standing to challenge the law, and sarcastically described her arguments as “amazing.”