Symposium: Abortion debate returns to the Roberts Court

When he ran for president in 2016, then-candidate Donald Trump promised that, if elected, he would appoint “pro-life” Supreme Court justices, which would result in the overturning of Roe v. Wade, the landmark 1973 decision establishing a woman’s right to an abortion. In the three years since taking office, Trump has put two new justices on the bench: Justice Neil Gorsuch, who filled the vacancy created after the February 2016 death of Justice Antonin Scalia, and Justice Brett Kavanaugh, who was confirmed in October 2018 after the retirement of Justice Anthony Kennedy. On March 4, the Supreme Court will hear oral argument in a challenge to the constitutionality of a Louisiana law regulating abortion. Although the case does not directly implicate Roe, the justices’ ruling may signal what direction the Roberts Court is likely to take in future abortion cases.

The law at the center of the dispute is known as the Louisiana Unsafe Abortion Protection Act. Enacted in June 2014, it requires doctors who perform abortions in the state to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. In 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a similar law from Texas, which that state had defended on the ground that it was intended to protect the health of pregnant women. In the wake of Justice Antonin Scalia’s death, the vote was 5-3: Justice Anthony Kennedy and the court’s four more liberal justices agreed that the state has a legitimate interest in protecting the health of pregnant women. However, the majority continued, there was no evidence that the admitting-privileges requirement actually advanced such an interest – but it did, on the other hand, make it much harder for women to get an abortion.

In the wake of Whole Woman’s Health, a federal district court in Louisiana permanently blocked the state from implementing the admitting-privileges requirement. It ruled that the requirement was invalid because it imposed an “undue burden” – the test for whether a law regulating abortion is unconstitutional – on a woman’s right to an abortion. If the law were allowed to go into effect, the district court determined, only one doctor in the entire state would be left performing abortions in the early stages of pregnancy, and there would not be any doctors providing abortions between 17 and 21 weeks of pregnancy.

In September 2018 the U.S. Court of Appeals for the 5th Circuit reversed, concluding that – unlike the Texas admitting-privileges requirement – the Louisiana law “does not impose a substantial burden on a large fraction of women.” By a vote of 9-6, the full court of appeals denied rehearing in January 2019, clearing the way for the state to enforce the requirement.

The challengers then went to the Supreme Court, asking them to block the state from enforcing the admitting-privileges requirement until they could file a petition for review of the 5th Circuit’s decision. In a late-night order in February 2019, the justices granted the challengers’ request. With Kennedy now retired, this time it was Chief Justice John Roberts – who had been in the dissent in the Texas case – who joined the court’s four more liberal justices in voting to stay the 5th Circuit’s ruling. The court’s four more conservative justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – all indicated that they would have denied the challengers’ application and allowed Louisiana to enforce the admitting-privileges requirement. In April, the challengers filed their petition for review; the Supreme Court granted that petition, as well as a related petition filed by the state, in early October.

Before the justices can get to the question of whether Louisiana’s admitting-privileges law is constitutional, they must decide a threshold question: whether the challengers have standing to sue – that is, whether they have a right to challenge the law at all. The state argues that they do not. As a general rule, the state reasons, a plaintiff can only raise his own rights. And although the Supreme Court has found an exception to this rule when a plaintiff has a “close” relationship with a third party and there is an obstacle that prevents the third party from asserting her own rights, the abortion providers can’t meet either prong of that test. First, there is no reason to believe that the providers’ patients could not challenge the admitting-privileges requirement themselves, particularly when other women – including in Louisiana – have brought lawsuits arguing that abortion restrictions are invalid. The fact that some patients may be poor does not matter, the state adds; indeed, the providers are represented in this case by the Center for Reproductive Rights, a national nonprofit, and a major law firm. Moreover, the state asserts, because the law is intended to protect women from “unscrupulous and incompetent abortion providers,” there is a “serious conflict of interest” between providers and the patients on whose behalf they are suing, who have an interest in their own health and safety. Second, the state argues, neither the clinic nor the doctors have the kind of close relationship with patients needed to sue on their behalf. The clinic is only a business, while the doctors generally begin an abortion procedure after women have already been sedated, and their patients normally don’t come back for follow-up appointments.

The abortion providers counter that it is too late for the state to argue that they lack a legal right to sue on behalf of their patients. Earlier in the case, the providers stress, the state agreed that the clinic had a right to sue, and it didn’t raise any objection to the providers’ right to sue until the providers filed their petition for Supreme Court review. But in any event, they say, they have a right to sue on their own, independent of any right that their patients might have: The law directly regulates abortion providers and imposes burdens on them, by requiring them to have admitting privileges and imposing criminal sanctions if they perform abortions without such privileges. A ruling for the providers would strike down the admitting-privileges requirement, which would benefit both the providers and their patients.

Moreover, the providers add, they can also meet the requirements to sue on behalf of their patients, because the Supreme Court has consistently ruled that the relationship between a doctor and her patient is close enough to allow doctors to challenge abortion regulations on behalf of patients. The providers push back against any suggestion that they have a conflict of interest that would prevent them from suing on behalf of their patients: As the Supreme Court made clear in Whole Woman’s Health, they argue, admitting-privilege requirements don’t provide any health or safety benefits. By contrast, threats of violence and harassment against patients who challenge abortion restrictions are a genuine hindrance that justifies allowing abortion providers to sue on their behalf. The “possibility of proceeding pseudonymously is not a cure-all for these concerns,” the providers conclude.

Turning to the admitting-privileges requirement itself, the abortion providers emphasize that the Supreme Court’s decision in Whole Woman’s Health means that the Louisiana admitting-privileges requirement must also be unconstitutional. The court’s ruling in Whole Woman’s Health rested, the providers stress, on “peer-reviewed studies, expert testimony about generally applicable facts, and other information about how admitting privileges work on a national rather than state-wide basis.” There is, they say, no reason to believe that the Supreme Court would have reached a different conclusion about whether similar laws in other states imposed an undue burden on access to abortion.

The district court in this case, the providers continue, concluded that the benefits and burdens of the Louisiana admitting-privileges requirement are “materially indistinguishable” from the Texas law that the Supreme Court struck down. The district court determined that the admitting-privileges requirement does not provide any additional health or safety benefits because abortions are already very safe in Louisiana, and there are other ways that the state ensures that the doctors who perform abortions are qualified to do so. The court of appeals was wrong to ignore these facts, the providers contend.

The state acknowledges that the Texas admitting-privileges requirement at issue in Whole Woman’s Health was “similar” to the Louisiana law, but it rejects the idea that this case is governed by the court’s decision in the Texas case. The Supreme Court’s ruling in Whole Woman’s Health relied heavily on the facts of that case, and it did not rule out that courts could reach a different result when, as here, they were reviewing a “very different regulatory context and record.” Indeed, the state observes, the plaintiffs in Whole Woman’s Health had tried but failed to have the Texas law declared unconstitutional before it went into effect; the majority emphasized that it could strike down the law as unconstitutional after the law was already being enforced because of “new material facts” about the consequences of enforcement. Even if a doctor in Texas might not have been able to obtain admitting privileges for reasons that had nothing to do with her competency, the state continues, that doesn’t necessarily mean that doctors in other states won’t be able to get privileges, particularly because the record shows that doctors in Louisiana should not have similar problems.

The state also pushes back against the providers’ suggestion that the Supreme Court in Whole Woman’s Health established what the state characterizes as a “pure balancing test,” that would require courts to weigh the benefits of a law regulating abortion against its burdens. Instead, the state argues, both Whole Woman’s Health and the 5th Circuit in this case adhered to the rule that a law imposes an “undue burden” on the right to abortion only when it creates a “substantial obstacle” to abortion. And in this case, the state concludes, the 5th Circuit simply concluded that the admitting-privileges requirement did not create a “substantial obstacle” to abortion because abortion providers in Louisiana can obtain admitting privileges.

Both sides in the dispute warn of dire consequences if their opponents prevail. A “friend of the court” brief by 197 members of Congress supporting the abortion providers tells the justices that laws like the Louisiana admitting-privileges requirement are part of a “recent wave of state legislation,” along with state laws banning abortion once a fetal heartbeat can be detected, intended to restrict women’s access to abortion and, ultimately, to get the Supreme Court to revisit and overturn Roe. If the concept of adhering to the court’s earlier decisions “is to mean anything,” the members of Congress urge the justices, “it must be that this Court’s prior decisions are entitled to a measure of deference, such that they are not freely jettisoned simply because current members of the Court would have decided them differently.”

The state and its supporters see things very differently. They complain that the providers’ interpretation of Whole Woman’s Health would strike down essentially all abortion regulations, because the burdens of an abortion regulation, no matter how minor, would always outweigh its benefits. A “friend of the court” brief by Idaho cites challenges to laws requiring abortions to be performed by physicians as an example of laws that are currently in jeopardy. Idaho urges the court to clarify the scope of Whole Woman’s Health – and, if necessary, the state adds, overrule it.

A “friend of the court” brief by 207 different members of Congress goes one step further, telling the justices that the 5th Circuit’s “struggle” to “determine what burden on abortion is undue” shows that the right to abortion established in Roe is not workable. Therefore, the representatives conclude, the Supreme Court should “again take up the issue of whether Roe and” the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, reaffirming the right to an abortion, “should be reconsidered and, if appropriate, overruled.”

Most of the public attention on the Louisiana case thus far has focused on the admitting-privileges requirement, rather than the question of whether the abortion providers have standing. Thomas flagged the standing issue in his 2016 dissent in Whole Woman’s Health; although neither Roberts nor Alito joined that dissent, we know that there were at least four votes on the court last year to take up the question in the Louisiana case. Resolving the case on the standing issue would allow the justices to decide the case without weighing in on the constitutionality of the admitting-privileges requirement itself, especially in an election year. We’ll have a better sense of the justices’ views on both issues after the oral argument on March 4.

This post was originally published at Howe on the Court.