Challengers to law requiring abortionists to have admitting privileges at local hospital file opening brief with U.S. Supreme Court

By Dave Andrusko

Kate Smith, the CBS News correspondent who handles the network’s abortion stories, chipped in today with a story letting us know that the challengers to Louisiana’s law requiring abortionists to have admitting privileges at a local hospital had filed their opening brief late Monday with the United States Supreme Court.

The 63-page brief in June Medical Services v. Gee, filed by the Center for Reproductive Rights, can be read in its entirety here.

Smith summarizes the two reasons why the CRR “believes the regulation should be struck down by the high court.

“First, CRR argued that since the Supreme Court struck down the same type of restriction in Whole Woman’s Health v. Hellerstedt in 2016, Louisiana’s restriction should also be deemed unconstitutional. Second, the law in question ‘is unconstitutional even assuming the burdens here are less than in Whole Woman’s Health.’”

At the end of her story, Smith writes that the Louisiana Attorney General’s office has until December 26 to file its opening brief in support of the Unsafe Abortion Protection Act.

Louisiana Solicitor General Liz Murrill in an email sent to CBS News on Monday night, said that “Women deserve better than incompetent providers that put profits over people.” Murrill added, “Louisiana isn’t Texas, and our case is distinguishable from Hellerstedt; our facts, our evidence, and our generally applicable medical standards are all different.”

On September 26, 2018, a three-judge panel of the U.S. 5th Circuit Court of Appeals voted to uphold the 2014 Unsafe Abortion Protection Act (Act 620), overturning a 2017 decision by U.S. District Court John deGravelles

5th Circuit Appeals Court Judges Jerry Smith and Edith Clement found the Louisiana law does not impose the same “substantial burden” on women as did the Texas law in the 2016 case of Whole Woman’s Health.

According to the majority opinion written by Judge Smith, the district court overlooked that the facts of the Louisiana case “are remarkably different from those” that invalidated the Texas law. The court also ruled that the Louisiana law does not “impose a substantial burden on a large fraction of women” as the Texas law did.

Judge Smith wrote

The court overlooked that the facts in the instant case are remarkably different from those that occasioned the invalidation of the Texas statute in WWH [Whole Woman’s Health]. Here, unlike in Texas, the Act does not impose a substantial burden on a large fraction of women under WWH and other controlling Supreme Court authority. Careful review of the record reveals stark differences between the record before us and that which the Court considered in WWH.

Almost all Texas hospitals required that for a doctor to maintain privileges there, he or she had to admit a minimum number of patients annually. Few Louisiana hospitals make that demand. Because Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence that any of the clinics will close as a result of the Act. In Texas, the number of women forced to drive over 150 miles increased by 350%. Driving distances will not increase in Louisiana. Unlike the record in Louisiana, the record in Texas reflected no benefits from the legislation.

Finally, because of the closures, the remaining Texas clinics would have been overwhelmed, burdening every woman seeking an abortion. In Louisiana, however, the cessation of one doctor’s practice will affect, at most, only 30% of women, and even then not substantially. That is only a summary. As we explain in detail, other facts underscore how dramatically less the impact is in Louisiana than in Texas. Because the Louisiana Act passes muster even under the stringent requirements of WWH and the other Supreme Court decisions by which we are strictly bound, we reverse and render a judgment of dismissal.