WASHINGTON (Reuters) – U.S. Supreme Court justices appeared divided on Wednesday as they weighed a major abortion rights case – a challenge to a Louisiana law that imposes restrictions on doctors that could make it harder for women to obtain the procedure, with Chief Justice John Roberts representing the potential decisive vote.
A demonstrator holds up an abortion flag outside of the U.S. Supreme Court as justices hear a major abortion case on the legality of a Republican-backed Louisiana law that imposes restrictions on abortion doctors, on Capitol Hill in Washington, U.S., March 4, 2020. REUTERS/Tom Brenner
The court, with a 5-4 conservative majority, heard arguments in an appeal by Shreveport-based abortion provider Hope Medical Group for Women seeking to invalidate the 2014 law.
The measure requires that doctors who perform abortions have a sometimes difficult-to-obtain arrangement called “admitting privileges” at a hospital within 30 miles (48 km) of the clinic. The liberal justices, including the court’s three women, appeared skeptical toward that requirement while the conservative justices seemed more receptive.
Roberts, a conservative who is considered the court’s ideological center, asked questions that seemed to focus on whether he felt bound by a 2016 precedent in which the justices struck down similar admitting privileges restrictions in Texas. He cast the deciding vote when the justices last year on a 5-4 vote blocked Louisiana’s law from taking effect while the litigation over its legality continued.
That vote brought him into conflict with his own position in the Texas case when Roberts was among the three dissenting justices who concluded that an admitting privileges requirement did not represent an impermissible “undue burden” on abortion access.
Roberts’ questions on Wednesday indicated he may feel bound by the 2016 precedent that admitting privileges laws provide no health benefit. But Roberts did not seem as convinced about whether the impact of such a law would be the same in every state, suggesting that similar state laws could be handled differently. That would leave open the possibility of Roberts voting to uphold the Louisiana law without specifically overturning the Texas precedent.
The most outspoken conservative during the arguments was Justice Samuel Alito, who questioned whether the clinic and doctors even had legal standing to bring the challenge because their interests are different from their patients. He suggested that women seeking abortions should be plaintiffs in such cases.
“Why shouldn’t they be the ones to bring suit?” Alito asked.
Two of Louisiana’s three clinics that perform abortions would be forced to close if the law is allowed to take effect, according to lawyers for the clinic.
Liberal Justice Sonia Sotomayor said it was a “mystery to me” why a 30-mile limit was imposed if the intent of the law was to show that doctors were properly credentialed.
Fellow liberal Justice Ruth Bader Ginsburg noted that medical complications for women who undergo abortions generally occur at home, meaning the fact that a doctor has a relationship with a nearby hospital is irrelevant.
“That’s what I don’t understand,” Ginsburg said.
A federal appeals court upheld the law. President Donald Trump’s administration supports Louisiana in the case.
Hundreds of demonstrators appeared outside the court on a cool and sunny day in the U.S. capital, with supporters of abortion rights outnumbering opponents. The Louisiana case will test the willingness of the court to uphold Republican-backed abortion restrictions being pursued in numerous conservative states.
When the Supreme Court struck down the Texas abortion law, conservative Justice Anthony Kennedy, who retired in 2018, joined the four liberal justices to defend abortion rights. The case heard on Wednesday marked the first major abortion dispute since Trump appointed conservatives Brett Kavanaugh, who replaced Kennedy, and Neil Gorsuch to the court.
Kavanaugh’s questions seemed aligned with Roberts, suggesting he might vote to uphold the Louisiana law on the basis that the facts on the ground are different to Texas while steering clear of overturning the 2016 precedent.
Gorsuch said nothing during the argument. Conservative Justice Clarence Thomas, who rarely speaks during arguments, was also silent.
Abortion remains one of the most divisive issues in American society, with Christian conservatives – an important constituency for Trump – among those most opposed to it.
Trump promised during the 2016 presidential race to appoint justices who would overturn the landmark 1973 Roe v. Wade ruling that recognized a woman’s constitutional right to an abortion and legalized it nationwide. The Supreme Court in 1992 reaffirmed Roe v. Wade in a ruling that prohibited laws that placed an “undue burden” on a woman’s ability to obtain an abortion.
Abortion rights advocates have argued that restrictions such as admitting privileges are meant to limit access to abortion not protect women’s health as proponents say.
Activists who oppose abortion are hoping the Supreme Court, with Gorsuch and Kavanaugh and perhaps additional Trump appointees on the bench if he wins re-election on Nov. 3, will scale back or even overturn Roe v. Wade.
Baton Rouge-based U.S. District Judge John deGravelles cited the undue burden precedent when he struck down Louisiana’s law in 2016, prompting the state to appeal to the New Orleans-based 5th U.S. Circuit Court of Appeals. The 5th Circuit upheld the law despite the 2016 precedent.
[For a graphic on U.S. state abortion laws, see here]
Reporting by Lawrence Hurley and Andrew Chung; Additional reporting by Jan Wolfe; Editing by Will Dunham