The newly conservative-leaning Supreme Court on Wednesday heard arguments in its first abortion case: June Medical Services v. Russo. For abortion-rights supporters, the case is a reminder that Roe v. Wade may not need to be challenged for abortion access to be dramatically restricted.
At issue Wednesday was Louisiana's "Unsafe Abortion Protection Act," a law that requires doctors who provide abortions to have admitting privileges at a nearby hospital. Supporters of the law say its intention is to improve patient safety. But pro-abortion rights advocates warn the law is medically unnecessary and would shut down abortion clinics, not just in Louisiana, but nationwide.
In their questioning, the female justices on the court focused on the practicality of the law and the impact it would have. Under the law, doctors who provide abortion would need admitting privileges at a hospital within 30 miles of their clinic, but as Justice Ruth Bader Ginsburg noted, most complications from abortion, especially ones delivered by pill, happen at home after a patient leaves a clinic. In Louisiana, where there are only three clinics, that could be hundreds of miles away.
"What sense does this 30 mile — that's what I don't understand," Ginsburg said. "I think everybody also agrees that the most likely place a woman will be if she needs to be in a hospital, she'll be at home… and her home has no necessary relationship to 30 miles from a clinic."
In Louisiana, only one doctor who currently provides abortion holds admitting privileges, highlighting the difficulty that physicians face when applying for the qualification, an issue noted by Justice Elena Kagan.
"...there's a great deal of evidence in the record that indicates that admissions privileges rest on many things," Kagan said. "It could rest on qualifications, but it could rest on the number of patients a doctor has. It could rest on whether a doctor — whether a particular hospital needs more providers. It could rest, too, it could rest on a general view that they don't want abortion providers in that hospital."
Ginsburg and Kagan also questioned the purpose of the law given the rarity of complications after abortion procedures. At the Hope Clinic, the plaintiff in the case, just four patients out of 70,000 in the past 23 years have been transferred to a hospital from the clinic.
"I don't know of a medical procedure where [the complication rate] is lower than that of any kind," Kagan said.
Liz Murrill, Louisiana's solicitor general who defended the law before the court, pointed out that the complication rate doesn't account for patients who experience issues outside of the clinic's setting.
Ginsburg also noted the low complication rates following abortions, and called into question the purpose of the law.
"You don't dispute that, among medical procedures, first trimester abortion is among the safest, far safer than childbirth," Ginsburg said to Murrill.
Murrill argued that the admitting-privileges requirement serves multiple functions: providing for the safety of abortion patients, as well as creating a credentialing system for doctors who provide the procedure.
"Louisiana's decision to require abortion providers to have admitting privileges was justified by abundant evidence of life-threatening health and safety violations, malpractice, non-compliance with professional licensing rules, legislative testimony from post-abortive women, testimony from doctors who took care of abortion providers' abandoned patients," Murrill said, defending the need for the state to credential doctors who provide abortion.
Julie Rikelman, an attorney for the Center for Reproductive Rights and the counsel challenging the law, as well as several justices, noted that the regulation was similar to a Texas law that was struck down by the Supreme Court's 2016 decision in Whole Woman's Health v. Hellerstedt.
"Why depart from what was pretty clear precedent?" Justice Stephen Breyer asked.
Murrill disagreed that the two laws were similar. "The law was different, the facts are different. The regulatory structure is different. And the record is different," Murrill said.
Abortion-rights supporters worry about the conservative shift of the court since Whole Woman's Health was decided, with the additions of Neil Gorsuch and Brett Kavanaugh. During the oral arguments, Kavanaugh kept his questions limited, asking Rikelman whether she believed the admitting privilege requirement was inherently unconstitutional or if it was because of the impact that it would have on abortion access.
"Could an admitting privileges law of this kind ever have a valid purpose, in your view?" Kavanaugh asked. "So your view is that they're unconstitutional in any state, regardless of the facts."
Rikelman answered: "They certainly serve no valid state interest. And, in fact, the district court here found that this law was a solution for a problem that didn't exist."
Gorsuch did not ask any questions during the hour-long hearing.
Louisiana has just three abortion clinics. If the Supreme Court finds Louisiana's law constitutional, all of them would stop offering the procedure, as firstby CBS News. The court's ultimate decision is expected early this summer.
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