National Right to Life Files Amicus Brief Urging Supreme Court to Uphold Louisiana’s Hospital Admitting Privilege Requirement for Abortion Doctors

The National Right to Life Committee and Louisiana Right to Life Federation filed today amicus curiae (friend of the court) brief in the United States Supreme Court urging the Court to uphold Louisiana’s hospital admitting Privilege requirement for abortion doctors. In so doing, NRLC and LRTLF urged the Court to reject any notion that federal courts can serve as an ex officio national medical board.

The NRLC is the nation’s oldest, largest, pro-life organization, consisting of 50 state affiliates and over 3,000 local chapters. While working to restore legal protection to the most defenseless members of our society, at all stages of life, the NRLC also has a long history of working to protect maternal health.

LRTLF was established in 1970 and is NRLC’s Louisiana affiliate. LRTLF’s pro-life advocacy also includes maternal health protection.

Louisiana adopted “Act 620,” which requires abortion doctors to have admitting privileges at a local hospital. Act 620 was based upon a lengthy history of abortion health and safety violations in Louisiana which reflected abortion clinics’ utter disregard to abortion doctor qualifications and the health threat that such disregard poses to women.

Louisiana has long required that doctors, who provide outpatient surgery at surgical centers, have local hospital admitting privileges—Act 620 simply extended this requirement to abortion doctors. The Fifth Circuit Court of Appeals held that Louisiana’s law is constitutional, concluding that Act 620 would—at worst—cause up to a one hour delay for abortion procedures at one of Louisiana’s three clinics.

The Fifth Circuit held this was not an “undue burden” under Court precedent.

Even Roe v. Wade, 410 U.S. 113 (1973), the case which legalized abortion, disavowed on-demand abortion and said states could regulate medical aspects of abortion. However, over time, the Court seemed to embrace a national-medical-board role, placing regulations of medical aspects of abortion under the Court’s “hyper scrutiny.”

Following calls by Justices to extract the High Court from the role of a national medical board, the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), applied a lowered-scrutiny, undue-burden test which recognized greater respect for legislative judgments and recognition of state interests throughout pregnancy.

Under Casey, a burden is not “undue” unless it imposes a “substantial obstacle” to actually obtaining an abortion, not just increased cost or delay. Casey held that a state regulation, like regulations concerning medical aspects of abortion, is constitutional as long as it is rationally related to a legitimate state interest, like protecting maternal health.

However, in 2016, the Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), created confusion about Casey’s lowered scrutiny of regulations and rejection of the Court’s medical-board role. There, the Court held a Texas law requiring abortion providers to have admitting privileges to a hospital within a 30-mile radius, as well as other regulations, was unconstitutional because it created an “undue burden” on women seeking an abortion.

The NRLC’s and LRTLF’s amicus brief argues that the Court should clarify that its undue-burden test under Casey still controls and is a lowered-scrutiny, deferential test that keeps it, and other federal courts, out of the medical board role. Under Casey, regulations designed to promote safety and maternal health, like the Louisiana statute, do not place an undue burden on women seeking abortions and so are constitutional.

James Bopp, Jr. of The Bopp Law Firm, PC, lead counsel for amicus curie NRLC and LRTLF, says:

“The Louisiana case demonstrates the abortion industry’s utter disregard for the lives and health of women by recklessly hiring abortion doctors who are obviously unqualified to perform abortions. The Louisiana hospital-admitting-privilege law addresses this problem by insuring that abortion doctors are subject to close scrutiny by other physicians. The abortion industry’s objections to such laws, that are necessary to protect women’s lives and health, should be rejected by the Supreme Court.”

The case is June Medical Services, L.L.C., et al. v. Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals in the Supreme Court of the United States (No. 18-1323). The amicus curiae brief is available here.