Deeply divided Supreme Court debates limits on abortion providers

WASHINGTON – Abortion returned to the Supreme Court Wednesday after a four-year hiatus and the addition of two associate justices named by President Donald Trump, who predicted in 2016 his election would lead to the reversal of Roe v. Wade.

But after an hour's debate that divided the court's conservative and liberal justices, it appeared the result would be less of a revolution than abortion opponents had hoped. And the result appeared to depend on Chief Justice John Roberts.

The issue was familiar: Should Louisiana be allowed to insist that doctors performing abortions have admitting privileges at nearby hospitals? The court struck down a nearly identical law in Texas in 2016, but Neil Gorsuch and Brett Kavanaugh were not justices at the time.

None of the justices voiced a desire to overrule the Texas case, and there was little support evident for an even more radical notion: that abortion clinics and doctors lack legal standing to fight on their patients' behalf. Only Associate Justice Samuel Alito hammered home that argument.

Instead, the court's decision appeared to depend on how Roberts, and perhaps Kavanaugh, interpret the Louisiana law's burdens and benefits. A ruling is expected by late June.

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"The results could be different in different states," Roberts said at one point, referring to the burdens placed on women in Louisiana versus Texas and elsewhere as abortion clinics close and doctors stop performing the procedures.

But on the benefits of the law, he said, "They're not going to change from state to state." 

Louisiana Solicitor General Elizabeth Murrill told the court those benefits include protecting the health and safety of abortion clinic patients and demanding strict standards for the doctors who treat them.

But Associate Justice Ruth Bader Ginsburg led the court's four liberals in claiming that admitting privileges at a hospital within 30 miles of where an abortion is performed has no benefit, because women needing follow-up care generally use a hospital near their home.

"Among medical procedures, first-trimester abortion is among the safest – far safer than childbirth," Ginsburg said.

While Gorsuch remained silent throughout the session, Kavanaugh asked whether state admitting privileges laws would be constitutional if clinics and doctors were not burdened. 

"Could an admitting privileges law of this kind ever have a valid purpose?" he asked Julie Rikelman, the lawyer representing June Medical Services, which operates a threatened abortion clinic in Shreveport.

"These laws have no medical benefit whatsoever," Rikelman responded.

Sensing a new opportunity with a more conservative court, anti-abortion forces have mounted a frontal attack against the court's precedents, starting with the Texas case and dating back to Roe v. Wade in 1973, which legalized abortion nationwide. 

Even if Louisiana doesn't produce the clear-cut victory they seek, the steady drumbeat of state laws limiting abortion promises to send more cases the high court's way soon. Disputes focus on the timing and type of abortions, regulations on clinics and doctors, requirements for patients – even the sex, race or disability of the fetus.

The laws threaten to extend a trend of abortion clinic closures that has slashed the number of independent clinics by one-third in the past eight years, from 510 to 344, according to the Abortion Care Network. Five states – Mississippi, Missouri, North Dakota, South Dakota and West Virginia – each are down to one clinic.

Louisiana, which leads the nation with 89 abortion restrictions passed since 1973, has three clinics left in New Orleans, Baton Rouge and Shreveport. A federal district court judge who struck down the 2014 law found that it likely would force two out of business.

The law was resurrected by a federal appeals court panel, and the full appeals court refused to rehear the case. Judges appointed by Trump all voted with the majority.

In the Texas case, a shorthanded court following the death of Associate Justice Antonin Scalia ruled 5-3 that requiring doctors to have hospital admitting privileges and clinics to meet surgical center standards imposed hardships on women without serving any medical purpose.

When the law was enacted, only six of the state's 44 abortion clinics met the new requirements. A court injunction allowed about 20 to remain open, but even after the high court victory, most of those that closed their doors never reopened.

In Louisiana, state legislators and government officials argued that the admitting privileges requirement would not have such a severe impact. Still, the Supreme Court last February refused to let it take effect while legal challenges continued, with Roberts joining the court's four liberal justices.

The state, backed by the Trump administration and scores of anti-abortion groups, contends the law is aimed at improving health and safety measures at abortion clinics. But groups such as Americans United for Life are open about wanting to overturn Roe v. Wade.

Abortion rights groups say hospital privileges are elusive for physicians who provide abortions and unnecessary when just 1 in 400 patients needs hospitalization. They also note that most of the nearly 10,000 women seeking abortions in Louisiana annually are poor and unable to travel long distances for the overnight stays state regulations require.

With Roberts and Kananaugh focused on the burdens and benefits of the law, it appeared they do not want to overrule the Texas case but believe at least the burdens – clinic closings, doctors failing to get admitting privileges, women being forced to drive long distances – can vary. That would allow the same abortion restriction to be constitutional in some states but not others.

Much of the debate focused on the half dozen doctors who have performed abortions at the state's three clinics and the efforts they made, or failed to make, to get admitting privileges.

Alito contended that some doctors lacked an incentive to gain those privileges because it would hurt their effort to get the Louisiana law struck down. And U.S. Principal Deputy Solicitor General Jeffrey Wall, representing the Trump administration, said several doctors made only "modest efforts" to get hospital privileges.

It took almost 20 years after Roe v. Wade before the court reinforced both the right to abortion and states' right to impose some restrictions in 1992's Planned Parenthood v. Casey. From 2000 to 2007, the court struck down a state law banning late-term abortions, then upheld a similar federal law. 

Last term, the justices upheld an Indiana law requiring the burial or cremation of fetal remains after an abortion. But they refused to consider that state's effort to ban abortions based on sex, race or disability, as well as Alabama's effort to ban a particular second-term method of abortion.

At the Supreme Court, abortion opponents view Kavanaugh as the crucial fifth vote. He praised Chief Justice William Rehnquist's dissent in Roe, and he dissented as a federal appeals court judge from a decision in 2017 allowing an undocumented teenager in government custody to get an abortion. 

But it may be a long way from Louisiana to the elimination of Roe v. Wade. Roberts prefers to move slowly, and Kavanaugh during his confirmation hearings in 2018 referred to the high court's abortion rulings as "precedent on precedent."