Bench Memos

Law & the Courts

Justices to Decide Whether States Can Protect Women from Dangerous Abortionists

People line up outside the Supreme Court as it resumes oral arguments at the start of its new term in Washington, D.C., October 7, 2019. (Mary F. Calvert/Reuters)

The U.S. Supreme Court announced on Friday that it will hear a petition filed by June Medical Services, a Louisiana abortion business, and the cross-petition filed by the State of Louisiana. Apart from a summary decision the Court issued without argument this year upholding Indiana’s law requiring that human fetal remains be treated humanely, the Louisiana case provides the Court with the first opportunity to speak to the abortion issue since Whole Woman’s Health v. Hellerstedt three years ago, and potentially even to address the continued viability of the constitutional right to abortion developed by Roe v. Wade (1973) and affirmed in Planned Parenthood v. Casey (1992).

June Medical’s petition seeks review of the constitutionality of a Louisiana law requiring all abortion doctors to be able to smoothly transfer women from the abortion facility to a nearby emergency room within 30 miles when complications arise. While the U.S. Supreme Court held a similar Texas provision unconstitutional in Hellerstedt in 2016, the Court did not rule on the overall validity of such provisions. Louisiana now argues that since its emergency-transfer law would leave abortion facilities open in both population centers in the state, it does not create an “undue burden” on women considering abortion in Louisiana in violation of Casey.

Louisiana’s cross-petition argues that the abortion business, June Medical, should not have the right to sue in court on behalf of women seeking abortion, since the law it challenges is designed to protect women from shoddy and substandard abortion practices. Americans United for Life filed an amicus curiae brief in support of Louisiana’s cross-petition, detailing numerous horrific violations of basic health-and-safety standards by abortion businesses in the state. Louisiana’s long and sordid history of dirty and dangerous abortion clinics being shuttered one by one in order to protect women from fly-by-night abortionists should tell the Court all it needs to know, both about the legal benefits of this law and the dubious right of abortionists to sue to overturn laws designed to protect their own patients.

The last time the Court heard an abortion case, it was in the jurisprudential netherworld between the death of Justice Antonin Scalia and the appointment of Justice Neil Gorsuch. Now, of course, another committed textualist, Brett Kavanaugh, has joined the High Court’s bench. Hellerstedt invalidated portions of Texas’s HB 2, including an admitting-privileges requirement similar to Louisiana’s, mandating that abortion practitioners have the ability to admit patients to a hospital within 30 miles of the abortion facility in emergency cases. The Supreme Court invalidated the measure in a 5-3 vote, calling it an “undue burden” on abortion access, with Justice Stephen Breyer writing for the majority. The Texas law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” Breyer maintained.

Hellerstedt was a “high water mark” for legalized abortion in America, a constitutional “test” that invited any of the hundreds of active federal judges to declare that the “burdens” on abortion access imposed by a given abortion regulation outweigh its benefit. Abortion advocates such as Planned Parenthood and the Center for Reproductive Rights have taken Hellerstedt and used it like a sledgehammer to invalidate laws in dozens of new cases around the country, even laws that previously had been held constitutional, such as parental-notice laws, outpatient surgical regulations, and even prohibitions on taxpayer funding of elective abortion.

Bravo for Louisiana, which has not taken its ball and gone home after the Hellerstedt decision but has continued to litigate its emergency-transfer law after (and some would say in spite of) Hellerstedt. (Alabama and Wisconsin threw in the towel on defending theirs.) A full bench trial in 2015 (full disclosure: Steven Aden was a member of the trial team for Louisiana), followed by re-briefing after Hellerstedt, resulted in a well-documented record for the Court to consider.

Americans United for Life is confident that the justices will vote to uphold Louisiana’s common-sense safety measure and allow Louisiana to protect women from substandard abortion doctors. Here’s hoping the Court also will take the opportunity to revisit Hellerstedt’s “thumb-to-the-wind” test and clarify that state laws may not be struck down simply because a federal court finds them to be marginally burdensome for abortion access. Hellerstedt has prolonged and exacerbated national confusion over what kinds of health-and-safety laws are permissible. It’s time to get the Supreme Court out of the business of overseeing the “national abortion control board” and to restore this sensitive and politically polarizing issue to the states and the people — where it has always belonged.

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