The Supreme Court appeared split during heated oral arguments Wednesday over the future of a Louisiana abortion law that advocates say could signal wider action on abortion policy ahead of the elections this fall.
At issue is whether the 2014 state law that would require abortion providers to obtain hospital admitting privileges within 30 miles of the clinic can take effect and, more broadly, if abortion providers have the right to file suit on behalf of their patients.
The case, June Medical Services v. Russo, is the first abortion case since the retirement of Justice Anthony M. Kennedy, who was pivotal in decisions that protect abortion rights. Kennedy’s replacement is Trump pick Justice Brett M. Kavanaugh, whose questioning mirrored that of Chief Justice John G. Roberts Jr.
The Louisiana law is nearly identical to a Texas law that the Supreme Court struck down in the 2016 case Whole Woman’s Health v. Hellerstedt. In that case, Roberts sided with the minority, but how he could rule during this case is more open to interpretation. However, he sided with the liberal justices to continue blocking the law from taking effect during the legal challenge.
Roberts is likely the central figure in deciding this case, with the other justices’ opinions clearer during arguments.
Kavanaugh asked if the admitting privileges law would still be considered unconstitutional by the plaintiffs if it did not present problems for providers.
Julie Rikelman, of the Center for Reproductive Rights and representing June Medical Services, argued the law would still have no medical benefit.
Roberts also wondered multiple times if the benefits to these types of laws could be different in different states.
“Why do you look at each state differently if the benefits aren’t going to vary from state to state?” he asked Jeffrey B. Wall, principal deputy solicitor general for the Department of Justice.
Rikelman, in her closing statement, responded, “The lack of benefits of these laws is not state dependent.”
Much of the passionate questioning came from justices Samuel A. Alito, Sonia Sotomayor, and Ruth Bader Ginsburg – with the latter two questioning the purpose of the state law.
Rikelman stated that 40 percent of abortions in Louisiana are medication abortions rather than surgical procedures, and complications, while rare, would likely only occur when the patient was already at home.
Ginsburg argued that because of this, most clinic procedures have no complications, and if a woman did need to go to a hospital, she would likely choose the closest to her home rather than one near the clinic.
Many women in Louisiana have to travel long distances to receive abortion care due to the lack of providers.
“What sense does the 30-mile limit make for medication abortions?” she asked, adding it has “no necessary limit to where she [the patient] lives.”
Elizabeth Murrill, the solicitor general for Baton Rouge, La., acknowledged that while there have been few documented complications reported by the clinic, “they really don’t know what their complication rates are” since some may not be reported.
Alito, in his questioning, hammered Rikelman on the third-party standing question, and if abortion providers should be allowed to sue at all on behalf of their patients.
He argued that if she was using the merits of this case to support third-party standing, then “there’s a serious problem with that.”
He said there is a constitutional right for privacy for women to seek abortions but not for abortion providers to practice.
Denying standing in this case would contradict decades of the court’s precedent, countered Rikelman.
A decision is expected before the current term ends in June, which could stir interest in abortion as the presidential campaign heats up.