June 29, 2020 9:49 am
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Categories: abortion Decisions and Verdicts Louisiana NY Times Supreme Court (US) Women and Girls

WASHINGTON — The Supreme Court on Monday struck down a Louisiana law that could have left the state with a single abortion clinic.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. voting with the court’s four-member liberal wing but not adopting its reasoning. The chief justice said respect for precedent compelled him to vote with the majority.

The case was the court’s first on abortion since President Trump’s appointments of two justices shifted the court to the right.

The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals.

The law’s supporters said the law protects the health and safety of women seeking abortions, and that the requirements for obtaining admitting privileges helps ensure the competence of doctors. Opponents disputed that, saying that hospitalizations after abortions are rare, that women would receive medical care at hospitals whether their doctors had admitting privileges or not and that abortion providers are often unable to obtain admitting privileges for reasons unrelated to their competence.

Only two of the five doctors who provide abortions in Louisiana have obtained admitting privileges, one in New Orleans and one in Shreveport. But the Shreveport doctor testified that he could not handle the clinic’s work alone. If the law went into effect, a trial judge concluded, there would be a single doctor in a single clinic, in New Orleans, available to provide abortions in Louisiana.

The judge, John W. deGravelles of the Federal District Court in Baton Rouge, struck down the Louisiana law in 2017, saying it created an undue burden on women’s constitutional right to abortion. The experience of the clinic in Shreveport, Hope Medical Group for Women, showed, he wrote, that the law was a solution in search of a problem.

“In the last 23 years, Hope Clinic, which serves in excess of 3,000 patients per year, had only four patients who required transfer to a hospital for treatment,” Judge deGravelles wrote. “In each instance, regardless of whether the physician had admitting privileges, the patient received appropriate care.”

The law, Judge deGravelles ruled, was essentially identical to the one from Texas that the Supreme Court struck down in the 2016 decision, Whole Woman’s Health v. Hellerstedt. Justice Stephen G. Breyer, writing for the majority in that decision, said courts must consider whether the benefits claimed for laws that put restrictions on abortion outweigh the burdens they put on the constitutional right to the procedure.

There was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment,” Justice Breyer wrote. But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to 20 from 40.

The vote in that decision was 5 to 3, with Justice Anthony M. Kennedy joining the court’s four-member liberal wing to form a majority. It was decided by an eight-member court after the death of Justice Antonin Scalia that February, and since then, Justice Neil M. Gorsuch was appointed to succeed Justice Scalia and Justice Brett M. Kavanaugh to succeed Justice Kennedy.

In 2018, a divided three-judge panel of the federal appeals court in New Orleans reversed Judge deGravelles’s ruling and upheld the Louisiana law notwithstanding the Supreme Court’s decision in the Texas case, saying that the law’s benefits outweighed the burdens it imposed.

“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry E. Smith wrote for the majority. In particular, he wrote, “the admitting privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.”

Judge Smith faulted doctors seeking to provide abortions in the state for not trying hard enough to obtain admitting privileges and said abortions would remain available after the law went into effect.

In dissent, Judge Patrick E. Higginbotham wrote that the majority’s ruling was impossible to reconcile with the Supreme Court’s 2016 decision in the Texas case and with its 1992 ruling in Planned Parenthood v. Casey, which banned states from placing an “undue burden” on the constitutional right to abortion.

“I fail to see,” Judge Higginbotham wrote, “how a statute with no medical benefit that is likely to restrict access to abortion can be considered anything but ‘undue.’”

The full Fifth Circuit refused to rehear the case by a 9-to-6 vote. In dissent, Judge Stephen A. Higginson wrote that the Louisiana law was “equivalent in structure, purpose and effect to the Texas law” invalidated by the Supreme Court in 2016.

“I am unconvinced that any justice of the Supreme Court who decided Whole Woman’s Health would endorse our opinion,” Judge Higginson wrote. “The majority would not, and I respectfully suggest that the dissenters might not either.”

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