The U.S. Supreme Court will likely decide by the end of the summer whether a controversial Louisiana abortion law that imposes restrictions on physicians can stand.
AndreyPopov/ThinkStock
Justices heard oral arguments March 4, 2020, in June Medicare Services v. Russo, which centers on a Louisiana law requiring physicians who perform abortions to have admitting privileges at a nearby hospital. Doctors who perform abortions without admitting privileges at a hospital within 30 miles face fines and imprisonment, while clinics that violate the law can have their licenses revoked, according to the state law, originally passed in 2014. In 2016, the Supreme Court in 2016 heard a similar case – Whole Woman’s Health v. Hellerstedt – concerning a comparable law in Texas. In that case, the justices struck down the measure as unconstitutional.
During oral arguments, Julie Rikelman an attorney representing June Medical Services, said that the Louisiana law is identical to the abortion law in Texas, and she argued that justices should reach the same conclusion.
“The district court found this law would leave Louisiana with just one clinic in one state to serve about 10,000 people per year,” Ms. Rikelman said during oral arguments. “That would mean that hundreds of thousands of women would now live more than 150 miles from the closest provider. And the burdens were actually more severe than this court found in Whole Woman’s Health.”
Elizabeth Murrill, solicitor general of Louisiana, argued that the Louisiana law was justified, and that the 5th U.S. Circuit Court of Appeals was correct when it reversed a district court decision and upheld the law.
“The 5th Circuit correctly held that the plaintiffs in this case failed to carry their burden – their heavy burden of proof that is required to facially invalidate a state law,” Ms. Murrill said during oral arguments. “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 postabortive women, [and] testimony from doctors who took care of abortion providers’ abandoned patients.”
During arguments, Justice Ruth Bader Ginsburg questioned the reasoning behind the 30-mile privileges rule, expressing doubt at the state’s justification for the requirement. “What sense does the 30-mile limit make, considering that – certainly for medication abortions and for the overwhelming number of other abortions ... if the woman has a problem, it will be her local hospital that ... she will need to go to for the care, not something 30 miles from the clinic.”
Ms. Murrill responded that the Louisiana regulation is consistent with surgery and ambulatory surgery regulations and aligns with the state’s regulatory structure.
“We had evidence in the record of women who did require transfers,” Ms. Murrill said. “[An abortion provider] testified unambiguously that he had to transfer four patients who had punctured uteruses and were hemorrhaging.”
Whether the plaintiffs have standing to sue is a key question. As a general rule, a plaintiff can only sue to protect their own rights, unless the plaintiff has a close relationship with a third party and there are barriers that prevent the third party from suing. Attorneys for Louisiana contend that the plaintiffs – the medical clinic and several physicians – have no right to sue because their rights are not at stake, and that there is no obstacle to patients suing over the law.
Since the Louisiana law is intended to protect women from “unscrupulous and incompetent abortion providers,” the state argues also that there is a conflict of interest between the physicians and the patients on whose behalf they are suing.
During arguments, Justice Samuel Alito Jr. repeatedly questioned Ms. Rikelman on the plaintiffs’ right to sue, conveying doubt that the plaintiffs were on solid legal ground.
“Would you agree with the general proposition that a party should not be able to sue ostensibly to protect the rights of other people, if there is a real conflict of interest between the party who is suing and those whose rights the party claims to be attempting to defend?” Associate Justice Alito asked during oral arguments.
The hearing ended with no clear picture of how some justices were leaning. Justice Clarence Thomas and Justice Neil Gorsuch remained silent during arguments and asked no questions. Chief Justice John Roberts Jr., and Justice Brett Kavanaugh questioned whether all admitting privileges laws were unconstitutional or if a state-by-state analysis is required. Near the end of the hearing, Justice Stephen Breyer stressed that more research and fact-finding is necessary before the court can reach a decision.
“We’re not going to solve this at oral argument,” he said.
A decision by the Supreme Court is expected by August 2020.