By Dave Andrusko
The Supreme Court announced this morning that it has agreed to hear Louisiana’s Act 620, the 2014 law that requires abortion clinics to have a physician with admitting privileges at a local hospital in case of emergencies.
The justices will likely hear oral arguments this winter with a decision coming in June 2020.
The High Court met this week to decide what cases it will hear this term. So far, it has not announced whether it will consider the component of Indiana’s HE 1337 that requires abortionists to provide women with the opportunity to view an ultrasound of their child at least 18 hours prior to performing abortion.
“We look forward to the Supreme Court reviewing Louisiana’s 2014 Unsafe Abortion Protection Act,” said Benjamin Clapper, Executive Director for Louisiana Right to Life. “Abortion facilities should not be provided loopholes when it comes to health and safety standards that apply across the board to outpatient surgical facilities.”
Carol Tobias, president of National Right to Life, told NRL News Today, “The abortion industry says abortion is ‘safe’ yet they oppose any and all regulations that attempt to protect women seeking an abortion.” Tobias added, “I hope members of the Supreme Court will ask themselves, ‘What is wrong with these abortionists that they can’t get admitting privileges at a local hospital?’”
Plaintiffs challenged Louisiana’s Unsafe Abortion Protection Act on the grounds that it was essentially indistinguishable from the Texas law that Supreme Court overturned in Whole Woman’s Health v. Hellerstedt, and that the result of the law that there would be only one remaining abortion clinic in the state. This would constitute an “undue burden” on a woman’s right to an abortion, the Center for Reproductive Rights argued.
The vote in Hellerstedt was 5-3. The Court was short a justice because a replacement for Justice Scalia, who had just died, had not been selected. Eventually Justice Neil Gorsuch was confirmed as Scalia’s replacement.
Last year Brett Kavanaugh became the second new justice added since Hellerstedt, following the retirement of Justice Anthony Kennedy who was in the majority in Hellerstedt.
As these cases always do, there is a long history of litigation. In 2017 federal district court Judge John deGravelles blocked the Unsafe Abortion Protection Act authored by state Rep. Katrina Jackson.
A three-judge panel of the 5th Circuit of Appeals lifted the stay.
Judge Jerry Smith, writing for the majority, explained, “We are bound to apply WWH [Whole Women’s Health], which is highly fact-bound, and the records from Texas and Louisiana diverge in all relevant respects.” Unlike the case in Texas, the Louisiana rule is unlikely to force any clinics to close. “Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence than any of the clinics will close as a result of the Act,” Judge Smith wrote.
“Act 620 results in a potential increase of 54 minutes at one of the state’s clinics for at most 30% of women. That is not a substantial burden at all, much less a substantial burden on a large fraction of women as is required to sustain a facial challenge.” (Emphasis added.)
Commenting on the decision, Louisiana Attorney General Jeff Landry observed, the appeals court panel “again affirmed what we have repeatedly said: our law is both factually and legally different from the Texas law that the Supreme Court ruled against.” Landry added, “I once again thank Representative Katrina Jackson for authoring this public safety legislation and Solicitor General Liz Murrill for preserving the Legislature’s intent.”
The full 5th Circuit Court of Appeals later voted 9-6 against the request for a rehearing by the full appeals court.