Howe on the Court 3/4/2020
In 2016, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions in that state to have the right to admit patients at nearby hospitals. In that case, Justice Anthony Kennedy joined the court’s four more liberal justices in concluding that the law made it harder for women to obtain abortions while not doing anything, despite the state’s argument to the contrary, to protect the health of pregnant women. Today the Supreme Court considered the constitutionality of a similar law from Louisiana. But with Kennedy now retired, the law’s fate seemed likely to hinge on the vote of Chief Justice John Roberts or perhaps Kennedy’s successor, Justice Brett Kavanaugh.
The dispute before the court this morning centered on the constitutionality of a 2014 law known as the Louisiana Unsafe Abortion Protection Act, which requires doctors who perform abortions in Louisiana to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. In 2018, a federal appeals court rejected a challenge to the law, concluding that it did not “impose a substantial burden on a large fraction of women.â€
The challengers – doctors who perform abortions and an abortion clinic – went to the Supreme Court last year, asking the justices to temporarily bar the state from enforcing the law until they could file a petition for review of the lower court’s decision. A divided court agreed to stay the lower court’s ruling, with Chief Justice John Roberts – a dissenter in the Texas case – joining the court’s four more liberal justices in voting to stay the 5th Circuit’s ruling. In April, the challengers filed their petition for review; the Supreme Court granted that petition, as well as a related petition filed by the state, in early October.
Arguing on behalf of the abortion providers, lawyer Julie Rikelman told the justices that “this case is about respect for the court’s precedent.†The Louisiana admitting-privileges requirement, Rikelman emphasized, was “expressly modeled on†the Texas law that the Supreme Court struck down in 2016 and “will do nothing for women’s health.†“Nothing has changed,†Rikelman continued, “that would justify such a legal about-face†from the court’s 2016 ruling.
Rikelman quickly faced a barrage of questions from Justice Samuel Alito regarding whether her clients had a legal right to challenge the Louisiana law at all. Should a plaintiff be able to sue to protect the rights of others, Alito asked, when there is a conflict between the plaintiff’s interests and the interests of the individuals whose rights the plaintiff seeks to protect? When Rikelman responded that a plaintiff should be able to sue when she is “directly regulated†by the law at issue, Alito was incredulous. “That’s amazing,†he told Rikelman. Rikelman pushed back, arguing that the state had waived its ability to challenge her clients’ right to sue. But more significantly, although Justices Clarence Thomas (who argued in his dissent in the Texas case that the abortion providers lacked a right to sue) and Neil Gorsuch did not ask any questions, neither Roberts nor Kavanaugh seemed to express any interest in this question, suggesting that there may not be five votes to dismiss the case on this ground.
More:
http://amylhowe.com/2020/03/04/justices-grapple-with-louisiana-abortion-law/
