The Supreme Court on Wednesday heard oral arguments regarding a Louisiana abortion law whose fate has pro-lifers hopeful and abortion proponents sounding alarms and issuing blustery threats.
Whatever the outcome when the court announces its ruling this summer in June Medical Services v. Russo, it could signal the direction of the high court on abortion cases in the foreseeable future.
The law in question is the Louisiana Unsafe Abortion Act of 2014, which requires abortion doctors to have hospital admitting privileges within 30 miles of the location where they perform abortions. The high court will settle two questions: whether the plaintiffs, representing abortion providers, have legal standing to sue the state on behalf of a third party, the pregnant women who fund their businesses; and whether the law’s requirements place an undue burden on women seeking abortion. Both aspects of the case came up before the court on Wednesday.
The Supreme Court in 2016 struck down a similar Texas law, arguing it created “substantial obstacles” to abortion. In turn, a federal district judge struck down Louisiana’s law. But in 2018, the U.S. 5th Circuit Court of Appeals reversed the district court’s ruling on grounds the Louisiana law “does not impose a substantial burden on a large fraction of women.” The state has reasoned that admitting privileges in Louisiana are easier to obtain than in Texas and the law serves the health interests of women.
The hearing was the first abortion-related case at the high court since the retirement of centrist Anthony Kennedy, a frequent swing vote who supported abortion rights and sided with liberals on other social-issue cases such as homosexual marriage.
In the 2016 Texas case, the Supreme Court, following the death of conservative stalwart Antonin Scalia, struck down the similar Texas law, 5-3. In that case—Whole Women’s Health v. Hellerstedt—Kennedy joined with the court’s liberal wing.
Now, with Kennedy retired and the addition of conservatives Neil Gorsuch and Brett Kavanaugh to the high court, conservatives hold a 5-4 advantage, with Chief Justice John Roberts the likely swing vote. Roberts dissented in the 2016 case, which could be a positive sign for the Louisiana law.
Todd Chasteen, vice president of public policy and legal counsel for Samaritan’s Purse, witnessed the deliberations and came away hopeful but cautious that the oral arguments, coupled with dozens of amicus briefs filed on behalf of the state of Louisiana, will persuade the court of the law’s constitutional validity. Unlike some other cases he’s witnessed, this one provided fewer clues to how the justices might rule, he said.
“The big thing for me is, why do abortion activists oppose giving a higher standard of care to women?” Chasteen asked. “The only thing that comes to mind is that anything they view as a regulation or restriction—anything—they oppose it because abortion is their sacred cow and they can’t give an inch. They protect it zealously, even when it involves better health protections for women.”
Denise Harle, senior counsel at Alliance Defending Freedom, who also attended the hearing, told Decision that the state was persuasive in making its case that the law serves the health and safety of women while holding to constitutional requirements.
“There was ample opportunity for the Louisiana solicitor general and the U.S. solicitor general to discuss the factual record in this case and the benefits this law would provide in terms of addressing specific health and safety violations and specific harm to specific women in cases that have actually happened in Louisiana because of a lack of admitting privileges.
“I think that was really important because if the court does get to the merits of the case, it’s going to need to assess the burdens and benefits of this law. So I think the opportunity that Louisiana had to discuss the record here certainly works in the state’s favor.”
Part of that record is recent. According to reports from LifeNews.com and Baton Rouge television station WAFB9, the Delta Clinic in Baton Rouge performed an abortion in March 2019 that resulted in a woman nearly dying because the clinic was not equipped to deal with the crisis. A clinic employee called 911, and the doctors at a local hospital performed an emergency hysterectomy to save the woman’s life.
At one point during the hearing, Justice Kavanaugh asked the plaintiffs’ attorneys if they would concede some benefit from an admitting privileges requirement if there were an ample supply of abortion doctors with admitting privileges and accessible facilities.
“And the other side said, ‘No,’” Harle recounted.
“It kind of gave away the farm that the abortion providers really don’t want a fair application of benefit vs. burden. They just want to say that if there’s any affect touching on abortion, there’s some burden there, and it’s therefore off the table.”
While lawyers for the state of Louisiana and the plaintiffs took turns arguing their cases before the nine justices, pro-life advocates staged a rally just outside before and after the hearing, as did pro-abortion forces.
“For so long, this nation put the abortion industry ahead of the health and safety of the women,” Louisiana state Sen. Katrina Jackson, a pro-life Democrat who co-authored the law, told the “Protect Women Protect Life” rally, hosted by Americans United for Life.
Jackson said her knowledge of cases in which women were injured by shoddy treatment in abortion facilities, some even left infertile, motivated her to draft the legislation.
“If you’re going to perform abortions in Louisiana,” said Jackson, “you’re going to take care of the health and safety of our women. Since the industry couldn’t do that, Louisiana expanded its law to include them.”
Cindy Collins, founder of Louisiana Abortion Recovery, told the rally that after her abortion, the doctor told her to “get up, get out and shut up.” Collins said she sat, bloodied and hemorrhaging, on the grass outside the clinic. She counsels women almost every day who have encountered similar things. “Women deserve better than that,” Collins said.
Former New Orleans Saints tight end Benjamin Watson also addressed the rally, noting: “I care about the vulnerable. To be pro-life is to have a whole-life ethic. We care about people’s hearts.”
While pro-lifers were rallying, a counter-rally of abortion supporters caused some political fireworks at the hands of Democratic New York Sen. Chuck Schumer. In full rhetorical fervor, Schumer uttered warnings to conservative Supreme Court justices Neil Gorsuch and Brett Kavanaugh, both appointees of President Donald Trump.
“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price,” Schumer told the crowd. “You will not know what hit you if you go forward with these awful decisions.”
Chief Justice John Roberts, in a rare public response from the high court, fired back in a statement.
“Justices know that criticism comes with the territory,” Roberts wrote, “but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter.”
The court is expected to announce its ruling in the case before the end of June.
Above: U.S. Sen. John Kennedy, R-La., speaks to pro-life activists during a rally outside the Supreme Court in Washington on March 4.
Photo: Caroline Brehman/CQ Roll Call/Newscom