Supreme Court blocks Louisiana abortion restrictions

WASHINGTON — The Supreme Court on Thursday blocked a Louisiana law that its opponents say could have left the state with only one doctor in a single clinic authorized to provide abortions.

The vote was 5-4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing.

The law, enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals. In 2017, Judge John W. deGravelles of the U.S. District Court in Baton Rouge, Louisiana, struck down the law, saying that such doctors were often unable to obtain admitting privileges for reasons unrelated to their competence and that the law created an undue burden on women’s constitutional right to abortion.

The Louisiana law, deGravelles ruled, was essentially identical to one from Texas that the Supreme Court struck down in a 2016 decision, Whole Woman’s Health v. Hellerstedt. Justice Stephen G. Breyer, writing for the majority in the 2016 decision, said courts must consider whether the claimed benefits of laws putting restrictions on abortion outweigh the burdens they placed 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 20 from 40.

The vote in the 2016 decision was 5-3, with Justice Anthony M. Kennedy in the majority. Justice Brett M. Kavanaugh replaced Kennedy last fall, shifting the court to the right.

Around the same time, a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, reversed deGravelles’ decision and upheld the Louisiana law, saying its 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.”

At the same time, he continued, the Louisiana law “does not impose a substantial burden on a large fraction of women.” 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 landmark 1992 ruling in Planned Parenthood v. Casey, which barred states from placing an “undue burden” on the constitutional right to abortion.

“I fail to see,” 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 9-6 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,” Higginson wrote. “The majority would not, and I respectfully suggest that the dissenters might not either.”

The clinic and doctors challenging the law filed an emergency application in the Supreme Court asking it to block the law while they pursued an appeal.

“Louisiana is poised to deny women their constitutional right to access safe and legal abortion with an admitting-privileges requirement that every judge in the proceedings below — the District Court, the panel majority and the dissenters — agrees is medically unnecessary,” the challengers wrote in their application in the case, June Medical Services v. Gee, No. 18A774.

“One doctor at one clinic cannot possibly meet the needs of approximately 10,000 women who seek abortion services in Louisiana each year,” they wrote. “Some of these women will attempt self-managed abortions, seek out unlicensed or unsafe abortions or be compelled to carry an unwanted pregnancy to term.”

Lawyers for the state responded that the law would be administered in a cautious way, with no immediate changes. The challengers were wrong, the state said, to assert that “Louisiana abortion providers will immediately be forced to cease operations, with dire consequences.” The law will take effect, the state’s lawyers said, as part of “a sensitive regulatory process that should begin in an orderly way.”

The challengers disputed that, saying that doctors without admitting privileges would risk immediate civil, criminal and professional liability if they performed abortions after the law became effective.

“Given the number and severity of the law’s penalties, no clinic or doctor without admitting privileges will continue to provide abortions” once the law becomes enforceable, they wrote. “Irreparable harm to women in Louisiana, therefore, is imminent.”