'SCOTUS Watch': Anticipation Builds As Major Supreme Court Abortion Decision Nears

Jun 5, 2020

It’s been three months since reproductive rights and anti-abortion groups swarmed the steps of the U.S. Supreme Court while lawyers for a Shreveport abortion clinic and the state of Louisiana faced off before the black-robed justices.

The landmark reproductive rights case — June Medical Services v. Russo — could decimate abortion access here, and potentially across the country. With just weeks left for the Court to release its decision, anticipation is rising.

“We are definitely doing what is called SCOTUS Watch just now,” said Kathaleen Pittman, the administrator of the Hope Medical Group for Women abortion clinic in Shreveport.

Back in 2014, it was her clinic and two doctors that sued the state over a law that would force abortion doctors to obtain admitting privileges at nearby hospitals, arguing that the law placed an undue burden on the constitutional right to abortion.

“I’m torn,” she said. “On the one hand, I want it to be over with. Let's move on. I'm certainly still hopeful for a good win. But then, on the other hand, I worry, well, if it's not a good win, or not a win at all, you know, where is that going to leave this?”

A district court found that if the law were to take effect, Louisiana would drop from three abortion clinics to just one. Most of the state’s few abortions doctors weren’t able to meet the requirement, which allows a doctor to admit and treat a patient in a hospital, through no fault of their own, the judge found. In some cases, anti-abortion sentiment seemed to be a factor. In others, it was the fact that abortion doctors rarely need to admit patients, because the procedure is exceedingly safe. (The clinic’s case was supported by the American Medical Association and the American College of Obstetricians and Gynecologists, among other leading national medical organizations.)

Since then, it’s not clear whether all three clinics might shut down, making Louisiana the first state without an abortion clinic since the aftermath of Roe v. Wade. Women could end up traveling hundreds of miles to Mississippi, Arkansas, Texas or Alabama.

The law is one of an estimated 450 anti-abortion restrictions passed around the country in the last decade, many aimed at abortion providers themselves — and one of 89 abortion restrictions passed in Louisiana since 1973, the most of any state. (The next state down, Indiana, has passed 63.)

It’s also identical to a Texas law that the Supreme Court struck down just four years ago. In that case, Whole Woman’s Health v. Hellerstedt, the court found that the admitting privileges law served no medical benefit, but would shut down half of Texas’s clinics.

“In Texas, it would have closed half the clinics,” said Nancy Northup, the CEO of the Center for Reproductive Rights, the legal non-profit that represents the Shreveport clinic. On a call with journalists last week, she called Louisiana’s case “identical in its lack of a medical purpose” but with a more devastating impact.

Northup and other abortion-rights advocates were outraged when the New Orleans-based Fifth Circuit Court of Appeals upheld Louisiana’s law in 2018 and 2019, despite that precedent set in Texas.

What’s changed in the years since the Texas case, though, is the occupant of the White House.

“The context of this is that the president of the United States, when he was running for office, said that he was — is — only going to put justices on the Supreme Court who would overturn Roe v. Wade,” Northup said.

Few observers believe the high court will use this case to overturn the decades-old ruling establishing a constitutional right to abortion, even though it’s been pushed to the right by two appointments from Donald Trump: Justices Neil Gorsuch and Brett Kavanaugh.

But other outcomes favorable to the anti-abortion movement are possible. And Benjamin Clapper, the executive director of Louisiana Right to Life and one of the law’s instigators, is hopeful the law will be upheld.

“We certainly hope that they're going to see the logic that we began with, that abortion facilities don't need protections,” he said. “The Supreme Court doesn't need to be in the business of protecting the abortion industry.”

Louisiana, led by stridently anti-abortion Attorney General Jeff Landry, has argued that the law places no undue burden on abortion access; that doctors didn’t try hard enough to gain admitting privileges; and that the law should be allowed to stand even while Texas’s was struck down because, it argues, there are different circumstances in this case.

It’s also said the law only forces abortion facilities to comply with standards set for other outpatient surgical centers, an argument that leaves aside the contentious question of whether that level of regulation is necessary for abortion in the first place.

“For us, it was not about closing or not closing facilities, it was about applying those same health standards across the board,” Clapper said.

Senator Katrina Jackson was a member of the House when she authored the law, and she told a rally of supporters outside the Supreme Court this spring that the law is necessary for patient safety.

“I thank God that Louisiana has led the forefront of putting women first,” Jackson said, to cheers from the crowd. “For so long this nation put the abortion industry before the health and safety of the women.”

Lawyers for the Shreveport clinic have asked how a requirement found to do nothing to improve abortion safety in Texas could have some benefit the next state over. And if Louisiana’s law is upheld, it would likely be replicated in other states, sparking similar legal battles that might likewise result in the mass closure of abortion clinics.

As Pittman puts it: “If it works in one state, well, let's try it in another state.”

But Pittman and her lawyers are worried about another aspect of the case. In addition to defending the law, Louisiana is arguing that abortion clinics and doctors should not be allowed to challenge state laws that might infringe on their patient’s right to an abortion.

The issue is critical, said Julie Rikelman, the lawyer who argued the case before the Supreme Court, becuase the vast majority of abortion rights suits are not brought by patients, but by their providers.

“There are dozens of cases in the federal courts right now where the plaintiffs, the parties who brought the case, are medical practices or physicians,” she said.

If doctors and clinics couldn’t sue over abortion restrictions, coronavirus abortion bans would likely have simply taken effect.

For abortion rights groups, the case is a perfect example of how Roe v. Wade can remain intact, while the practical access to the procedure crumbles.

“If there's no meaningful access to abortion, if states can pass laws like this one, which close clinics and make it extremely difficult for anyone to actually access abortion, even while Roe remains the law, that is deeply troubling,” Rikelman said. “And the legal right does not mean a lot to a lot of people if they can't actually access the care that they need.”

There’s no doubt that upholding Louisiana’s law would signal to anti-abortion politicians that there’s a new Supreme Court when it comes to one of the most incendiary issues in American politics.