WASHINGTON — Chief Justice John Roberts and Justice Brett Kavanaugh seemed key to the outcome of the Supreme Court’s consideration of a restrictive abortion law from Louisiana, with both wondering Wednesday how a 2016 decision striking down an identical law from Texas should guide their judgment.

With the court’s four liberals appearing convinced that the Louisiana law is unconstitutional, Roberts could cast the deciding vote in the court’s first examination of abortion since President Trump’s two nominees joined the bench.

Roberts asked a variation of the same question at least three times: Should the court undertake a fact-dependent, state-by-state review when examining a law’s restrictions? He did not indicate that he had made up his mind on the question.

The justices are examining whether the state’s 2014 law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals unduly burdens women’s access to abortion. Practitioners claim, and a federal judge agreed, that the law could force two of the state’s abortion clinics to close, leaving only one doctor to perform the procedures.

Abortion providers say the case is a test of the court’s commitment to honor precedent: The law is practically identical to a Texas law struck down by the Supreme Court in 2016. Then-Justice Anthony Kennedy joined the court’s four liberals to form a majority in what was its most important endorsement of abortion rights in 25 years.

Since then, Trump’s choices for the court, Neil Gorsuch and Kavanaugh, have replaced the late Antonin Scalia and Kennedy, respectively. Both were enthusiastically supported by antiabortion groups.


Gorsuch did not ask a question during the more than one-hour oral argument.

Kavanaugh asked the clinic’s attorney whether laws requiring abortion providers to have admitting privileges could ever be constitutional.

“Are you saying admitting privileges requirements are always unconstitutional?” Kavanaugh asked attorney Julie Rikelman, after posing a hypothetical about a state with 10 clinics and 20 doctors, all with the necessary credentials. Kavanaugh had previously voted to allow the law to go into effect, saying it was unclear whether doctors had worked hard enough to secure the privileges.

Rikelman, senior litigation director of the Center for Reproductive Rights, said the justices must extend the court’s ruling in the Texas case to Louisiana’s identical law because the measure itself serves no valid medical purpose and instead imposes unconstitutional barriers to access to abortion.

Rikelman said there was a “consensus” in the medical community that the admitting privileges requirement is never beneficial. In her closing, she told Roberts that the facts did not change across the states, but that a district judge had found that Louisiana’s law was “more burdensome than Texas’.”

Roberts was a dissenter in the 2016 case and has never in his tenure found that an abortion restriction went too far.


But in February 2019, he sided with the court’s four liberals in an emergency motion that kept the Louisiana law from going into effect.

Roberts gave no reason for his vote. He may have questioned whether an appeals court decision to uphold the Louisiana law complied with the court’s precedent, or he could have simply wanted to maintain the status quo until the Supreme Court could consider its merits.

The question of whether the abortion providers had legal standing to bring the case was not in the 2016 case. Justice Samuel Alito sounded highly skeptical that clinics have legal standing, calling such a claim “amazing” because of the doctors’ potential conflict of interest.

To reject the clinic’s right to sue, Rikelman said, would require the court to overrule at least eight past abortion-related decisions.

Liberals said the court would be reversing decades of precedent to make such a finding, and the court’s other conservatives did not ask about the issue.

The court could reaffirm or overturn its 2016 precedent in the Texas case, or distinguish it in a way that a restriction deemed unconstitutional in one state is allowed in another.


One change at the court: While the Justice Department in 2016 urged the court to strike down the Texas law, Trump administration lawyers will argue that Louisiana’s should be left in place, even if it means overturning the opinion in the Texas case, Whole Woman’s Health v. Hellerstedt.

The court’s majority in that decision said the admitting-privileges requirement “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”

Hospitalization after an abortion is rare, all sides agree, and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman getting needed medical care. The court’s opinion said there are numerous reasons doctors might not be able to attain admitting privileges at a nearby hospital, including the fact that it is so rare for their clients to need hospitalization.

A Louisiana federal judge held a six-day trial on the law and agreed with abortion providers that the court’s decision in Hellerstedt meant that the law was unconstitutional.

But a panel of the U.S. Court of Appeals for the 5th Circuit — the same court that had upheld the Texas law — disagreed. The panel, on a 2-to-1 vote, found factual distinctions between how the restriction played out in Texas and Louisiana.

Judge Jerry Smith, writing for the majority, said that the court complied with the Supreme Court’s decision by taking a painstakingly close look at the details.


“Unlike in Texas, the [Louisiana law] does not impose a substantial burden on a large fraction of women,” he concluded.

The full 5th Circuit declined to reconsider the panel’s decision, and dissenting judges said their colleagues seemed more intent on giving the Supreme Court a chance to reverse its 2016 ruling than complying with it.

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

The Louisiana case is June Medical Services v. Russo.

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