WASHINGTON — A Supreme Court argument in a major abortion case on Wednesday yielded few clues about whether the justices are prepared to uphold a Louisiana law that its opponents say would leave the state with only one doctor in a single clinic authorized to provide abortions.
The members of the court who may hold the key votes — Chief Justice John Roberts and Justice Brett Kavanaugh — focused their questions on whether they were bound by a 2016 decision that struck down an identical Texas law.
The chief justice, for instance, wanted to know if “the results could be different in different states.”
Only Justice Samuel Alito asked questions consistently supportive of the Louisiana law. Justices Clarence Thomas and Neil Gorsuch asked no questions.
The court’s four liberal members appeared united in their opposition to the law. Justice Stephen Breyer said the very divisiveness of the societal debate over abortion argued in favor of respect for precedent.
“People have very strong feelings,” he said. “The court is struggling with what kind of rule of law do you have in a country that has both kinds of people.”
“Why depart,” he asked, “from what was pretty clear precedent?”
The arguments were the court’s first sustained consideration of abortion since President Donald Trump’s appointments of Gorsuch and Kavanaugh shifted the court to the right, with a ruling expected in June. The case is very likely to yield an unusually telling decision, one that could reshape the constitutional principles governing abortion rights and ripple through the presidential campaign.
The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. Only two doctors in Louisiana have been able to meet the requirement, the law’s challengers say, and one testified that he could not handle his clinic’s work alone.
Kavanaugh asked whether the requirement offered any benefits to women seeking abortions and whether, if it did not, that should be the end of the matter.
“Are you saying,” he asked Julie Rikelman, a lawyer with the Center for Reproductive Rights, “that admitting privilege requirements are always unconstitutional such that we don’t need to look at the facts state by state?”
Rikelman said the requirement did not protect women’s health. “These laws have no medical benefits whatever, and only impose barriers to abortion,” she said.
Lawyers for Louisiana and the federal government defended the law, saying it provided needed protections, and they urged the court to scrutinize the facts on the ground in Louisiana.
In 2016, the court struck down an identical Texas law. The vote in that case was 5-3, with Justice Anthony M. Kennedy, now retired, joining the court’s four-member liberal wing to form a majority. The case was decided by an eight-member court after the death of Justice Antonin Scalia that February. Since then, Trump appointed Gorsuch to succeed Scalia and Kavanaugh to succeed Kennedy.
Supporters of the admitting-privileges law say it protects the health and safety of women seeking abortions and helps ensure the competence of doctors.
Opponents say the law’s real purpose is to make it harder for women to get abortions. Doctors who perform abortions are often unable to obtain admitting privileges for reasons unrelated to their competence, the law’s critics say, and the privileges themselves do not make abortions safer, as hospitalizations after abortions are rare and women receive medical care at hospitals regardless of whether their doctors have admitting privileges.
A divided three-judge panel of the federal appeals court in New Orleans upheld the Louisiana law in 2018 notwithstanding the Texas decision, saying that the law’s benefits outweighed the burdens it imposed.
“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry 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.”
Last year, the Supreme Court granted a last-minute request from abortion providers to block the law while they pursued an appeal in the case. That interim ruling featured an unusual 5-4 coalition, with Roberts joining the court’s liberals. He had dissented in the Texas decision.
The meaning of Roberts’ vote to temporarily block the Louisiana law is unclear, and it is hardly certain that he will vote to uphold the law now that it is before the court on its merits. Instead, he might have meant only to ensure an orderly process in which the Supreme Court, rather than an appellate panel, decides whether to limit or overrule a recent Supreme Court precedent.
The court agreed to hear the abortion providers’ appeal in October. At the same time, the court also agreed to decide another issue pressed by Louisiana in a separate petition: whether abortion providers have legal standing to challenge health and safety regulations on behalf of their patients.
If the court accepts that argument, it could avoid deciding whether the Louisiana law is constitutional.
However the court rules, other abortion cases are likely to follow. Several state legislatures have enacted laws that seem calculated to try to force the Supreme Court to consider overruling Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Trump has vowed to appoint justices who will vote to overrule the decision.
The Louisiana law was struck down in 2017 by Judge John deGravelles of the U.S. District Court in Baton Rouge, who said that doctors willing to perform abortions were often unable to obtain admitting privileges for reasons unrelated to their competence and that the law created an undue burden on abortion rights.
The law, deGravelles ruled, was essentially identical to the one in Texas that the Supreme Court struck down in the 2016 decision, Whole Woman’s Health v. Hellerstedt. Breyer, writing for the majority in that decision, said courts must consider whether the benefits claimed for laws that put restrictions on abortion outweighed 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,” Breyer wrote. But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to about 20 from about 40.
The 5th U.S. Circuit Court of Appeals, in New Orleans, reversed deGravelles’ decision and upheld the Louisiana law.
The Louisiana law “does not impose a substantial burden on a large fraction of women,” Smith wrote for the majority. He 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.
The full 5th Circuit refused to rehear the case by a 9-6 vote. In dissent, Judge Stephen 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,” Higginson wrote. “The majority would not, and I respectfully suggest that the dissenters might not either.”