friday, 4 october of 2019


Supreme Court to Hear Abortion Case From Louisiana

The Supreme Court on Friday agreed to hear a challenge to a Louisiana law that requires doctors performing abortions to have admitting privileges at nearby hospitals, its first abortion case since President Trump’s appointments of two justices shifted the court further to the right.

The court’s ruling, expected in June as the 2020 presidential campaign enters its final stretch, could reshape the constitutional principles governing abortion rights. Opponents say the law, enacted in 2014, would leave the state with only one doctor in a single clinic authorized to provide abortions. And it is very likely to yield an unusually telling decision because, in 2016, the court struck down an essentially identical Texas law.

The vote in the 2016 decision was 5 to 3, with Justice Anthony M. Kennedy joining the court’s four-member liberal wing to form a majority. It was decided by an eight-member court after the death of Justice Antonin Scalia that February. Since then, Justice Neil M. Gorsuch was appointed to replace Justice Scalia and Justice Brett M. Kavanaugh to replace Justice Kennedy.

The federal appeals court in New Orleans upheld the Louisiana law last year notwithstanding the 2016 decision. In November, the Supreme Court granted a last-minute request from abortion providers to block it while they pursued an appeal in the case, Gee v. June Medical Services, No. 18-1460.

That interim ruling featured an unusual 5-to-4 coalition, with Chief Justice John G. Roberts Jr. joining the court’s liberals. He had dissented in the 2016 decision.

The meaning of Chief Justice Roberts’s vote to block the Louisiana law is contested, and it is hardly certain he will vote to uphold the law on the merits. Instead, he might have meant only to ensure an orderly process in which the Supreme Court, rather than an appellate panel, makes the momentous decision of whether to limit or overrule a recent Supreme Court precedent.

Other abortion cases are likely to follow the one from Louisiana, as 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. Mr. Trump has vowed to appoint justices who will vote to the overrule the decision.

The Louisiana law was struck down in 2017 by Judge John W. deGravelles of the Federal 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 women’s constitutional right to abortion.

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

A divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, reversed Judge deGravelles’s 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."

He added that the Louisiana law “does not impose a substantial burden on a large fraction of women.” Judge 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 banned states from placing an “undue burden” on the constitutional right to abortion.

"I fail to see," Judge 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-to-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," Judge Higginson wrote. "The majority would not, and I respectfully suggest that the dissenters might not either."

(Published by The New York Times, October 4 2019)

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