The U.S. Supreme Court on Friday added abortion rights to its docket for the new term, agreeing to hear a challenge to a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals.
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The case, June Medical Services v. Gee, which will likely be scheduled for oral arguments in early 2020, will be the first involving abortion for the court’s new majority of justices appointed by Republican presidents, including President Donald Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh.
It also comes amid a crush of state laws passed over the last two years aimed at sharply restricting — or outright banning — abortion, many with the express expectation that legal challenges may end up before the high court.
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The Louisiana law, signed in 2014, requires “that every physician who performs or induces an abortion shall ‘have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced.'”
Admitting privileges allow a physician to practice medicine at a given hospital. Doctors are usually required to apply for the privileges and meet qualifications set forth by the facility. Critics of the Louisiana law say the requirement is costly, burdensome and likely to drive many abortion providers out of business, which in turn will severely limit women’s access to the procedure.
Louisiana only has three licensed abortion clinics. Supporters of the law say the state has the right to regulate the clinics to ensure safety.
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In February, the court granted one clinic’s request for an emergency stay of the law while the case proceeds. The 5-4 decision, in which Chief Justice John Roberts joined with members of the court’s liberal wing, signaled the court’s willingness to take up the case.
“The Supreme Court rightfully refused to uphold a brazen and unconstitutional attempt to ignore identical cases that are intended to shutter abortion clinics in the state,” said lyse Hogue, president of NARAL Pro-Choice America, an abortion rights group, at the time.
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In 2016, the Supreme Court rejected a similar law in Texas after a challenge from Whole Woman’s Health, a health organization that provides abortions, that required doctors to have admitting privileges at local hospitals and mandated that abortion clinics meet state requirements for licensed surgical centers. The majority, in a 5-3 decision, said the law created an “undue burden” on women seeking access to abortion.
“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” Justice Stephen Breyer wrote in the court’s opinion. “Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”
In her concurring opinion, Justice Ruth Bader Ginsburg wrote that “Targeted Regulation of Abortion Providers laws” like the Texas law that, quoting a previous abortion case, “‘do little or nothing for health, but rather strew impediments to abortion’ … cannot survive judicial inspection.”
The 5th Circuit U.S. Court of Appeals recently ruled, however, that Louisiana’s 2014 law is substantively different from the Texas measure and should be upheld because it does not “impose a substantial burden on a large fraction of women” in the state.
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“The question is: has the chief justice been convinced that the Texas opinion is controlling,” said Tom Goldstein, a constitutional lawyer and co-founder of SCOTUSblog. “I would say that this case will probably stand for the proposition that conservative, pro-life organizations do need to take care in the precise cases they bring to the court.”
“Today the court agreed to hear the Louisiana case challenging identical laws, modeled on Texas, after seeing nearly all of our clinics shuttered,” Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, told ABC News Friday. “We at Whole Woman’s Health know, however, that the same laws will have the same effects in Louisiana that they did in Texas. Barriers like hospital admitting privileges are not based on health and safety, but are designed to shutter clinics and make abortion unavailable.”
“If the rule of law means anything, it means that the Court cannot sit by and watch as the lower court thumbs its nose at Supreme Court precedent and at people’s constitutional rights,” Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project said in a Friday statement. “We hope and expect that the Court will strike down this unconstitutional law, which would decimate access to abortion for people in Louisiana.”
(MORE: Supreme Court Strikes Down Texas Abortion Limits)
Opponents of abortion rights have been pushing state legislatures to adopt bold, sweeping restrictions on the procedure — fully expecting legal challenges — with an aim of giving the Supreme Court an opportunity to take them up and revisit the precedent set by the 1973 decision in Roe v. Wade.
Through July 2019, states have enacted 58 new abortion restriction laws this year — 26 of which would ban all or most abortions, according to the Guttmacher Institute.
Louisiana in May enacted a so-called “heartbeat” bill that bans abortions after a fetal heartbeat can be detected, which is as early as six weeks into a pregnancy. There are no exceptions for cases of rape or incest. The bill was signed into law by Democratic Gov. John Bel Edwards.
“It’s extremely unlikely that any of the bans will make it to SCOTUS this year,” said American Civil Liberties Union attorney Jennifer Dalven. “But they don’t need to take up a ban case to place limits on Roe.”