The Supreme Court will decide this term whether Louisiana can require doctors who perform abortions to have admitting privileges at a local hospital, a case watched closely by advocates on both sides of the abortion debate.
The politically explosive topic joins a slew of other high-profile issues for the court’s new term, including immigration, LGBT rights and gun control.
It will be the first major abortion case at the Supreme Court since the departure of Justice Anthony M. Kennedy — who was central in previous cases that upheld abortion rights — and the arrival of President Donald Trump’s newest appointee, Justice Brett M. Kavanaugh.
While a date has not yet been set in the case of June Medical Services v. Gee, it is expected to be decided before the end of the term in June 2020, when the presidential campaign will be in full swing.
The 2014 Louisiana law, which has been on hold, would require an abortion provider to have admitting privileges at a local hospital within 30 miles of the clinic where the procedure was done. The Supreme Court voted in February to temporarily delay implementation of the law to allow for an appeal.
Admitting privileges can be difficult to get due to strict requirements, and advocates argued that the requirement would force all but one of the state’s providers to shut down. Some hospitals, for example, require a clinic to be located within a certain radius of the hospital, ask the provider to follow religious criteria, or require the provider to admit a minimum number of patients.
Approximately 10,000 women seek abortion services in Louisiana each year.
The Center for Reproductive Rights, representing local provider Hope Medical Group, asked the Supreme Court in April to overturn the U.S. Court of Appeals for the 5th Circuit without needing to hear the case at all. But summary reversals are rarely granted.
CRR has compared this case to the 2016 Supreme Court decision in Whole Woman’s Health v. Hellerstedt, which struck down a Texas law that also required abortion providers to have local hospital privileges.
CRR has claimed that the Louisiana and Texas laws are identical and asked SCOTUS to overturn the 5th Circuit’s decision in the Louisiana case. After the Whole Woman’s Health decision, Mississippi, Wisconsin and Alabama halted their admitting privilege laws.
Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project, pointed out that the Texas precedent was set just three years ago.
“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,” Dalven said.
Both the Texas and Louisiana laws require privileges with 30 miles of the clinic where the procedure was done. When Texas’ law was enforced before the Supreme Court ruling, about half of the state’s clinics closed.
The case will almost certainly turn on Chief Justice John G. Roberts Jr., who dissented in the Whole Woman’s Health case striking down the Texas law, and could signal how far and how fast the conservative wing of the court wants to reshape the nation’s landscape on abortion, legal experts say.
One prior decision they could target is Planned Parenthood v. Casey, a 5-4 decision in 1992 that found states could not enact laws that are an “undue burden” on the right to an abortion. The landmark 1973 decision Roe v. Wade first established that right.
Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center, said last week that if the court grants the Louisiana case, then “the assault on Casey begins.”
The Supreme Court’s decision to take up the Louisiana case comes as the ACLU recently asked the high court to weigh in on a Kentucky ultrasound requirement prior to abortions — one of a number of legal challenges that conservatives hope could eventually overturn Roe v. Wade.
The Supreme Court may also act on another abortion case — a challenge to an Indiana law that would require providers to give women seeking an abortion certain information 18 hours before the procedure that might persuade them not to have an abortion.
Under the law, the woman seeking an abortion would receive an ultrasound and have the option to see a photo of the fetus.
A panel of the 7th Circuit Court of Appeals ruled against the law, calling it a “large barrier to access without any evidence that it serves the intended goal of persuading women to carry a pregnancy to term.”
Opponents of the law have argued it places an undue burden on women and forces them to arrange two trips to a provider, often many miles away.
The high court could grant the case and reverse the decision if five justices see value in having the ultrasound information available, even if it causes burden.
Todd Ruger contributed to this story.