Abortion clinics face critical test at Supreme Court

WASHINGTON – An hour-long oral argument inside the Supreme Court Wednesday could go a long way toward reversing abortion rights in the United States. Whether they ultimately revert by four years or 47 remains to be seen.

It was just 2016 when the high court struck down restrictions on Texas clinics and doctors as an undue burden on women. The ruling helped abortion rights advocates beat back similar laws in other states.

Now a nearly identical law in neighboring Louisiana is before the court, and the prognosis for abortion opponents has improved dramatically. State officials contend the facts on the ground, as well as the legal issues, call for a different result. But there is another reason as well.

“It’s a different court,” says Steven Aden, chief legal officer at Americans United for Life, which has been fighting abortion laws for 50 years.

This is the court that three Republican presidents built, the latest being Donald Trump. Its newest associate justice, Brett Kavanaugh, replaced Anthony Kennedy, who provided the decisive vote in the 2016 Texas case that looked like a landmark at the time. Not so much now.

Anti-abortion forces have mounted a frontal attack against the Supreme Court’s precedents, starting with the 2016 decision but dating back to Roe v. Wade in 1973, which legalized abortion nationwide. 

Even as the nation’s abortion rate has dropped to its lowest level since Roe was decided, the rapid-fire enactment of state laws imposing new restrictions promises to generate more lawsuits headed the high court’s way. Disputes focus on the timing and type of abortions, regulations on clinics and doctors, requirements for patients – even the sex, race or disability of the fetus.

“The Supreme Court could really start to unroll abortion rights,” says Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a reproductive rights think tank.

That would extend a trend of abortion clinic closures that has slashed the number of independent clinics by one-third in the past eight years, from 510 in 2012 to 344 last year, according to the Abortion Care Network. Five states – Mississippi, Missouri, North Dakota, South Dakota and West Virginia – each are down to one clinic.

Louisiana, which leads the nation with 89 abortion restrictions passed since 1973, has three clinics left in New Orleans, Baton Rouge and Shreveport. A federal district court judge determined that the law under challenge, which mandates that abortion providers have admitting privileges at nearby hospitals, could force two out of business.

Says Kathaleen Pittman, the longtime administrator of Hope Medical Group for Women in Shreveport: “Roe becomes meaningless if there is no access to abortion.”

‘Two different Americas’

Access, it turns out, depends on where you live. That’s the concern for abortion rights advocates in the South and Midwest.

Twenty-five states dominate the statute books when it comes to so-called “TRAP laws,” or targeted restrictions on abortion providers. Court challenges are pending in many of them, including Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, Texas and Wisconsin.

Last year, states enacted 58 new restrictions and 36 measures making abortion more accessible, the Guttmacher Institute reported. While mostly “red” states sought to block abortions after a certain number of weeks and impose limits on patients and providers, “blue” states went in the other direction.

Last week, Virginia repealed decades-old restrictions including 24-hour waiting periods and mandatory ultrasound tests. Meanwhile, the Trump administration is battling California over its requirement that most health plans cover abortion services. New York, Illinois, Washington, Oregon and Maine have similar laws. 

“What’s emerging here is what I think of as two different Americas,” says Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which operates seven clinics in five states and was the winning plaintiff in the Texas case.

In that 2016 case, the court ruled 5-3 that a law requiring that doctors have hospital admitting privileges and clinics meet surgical center standards imposed hardships on women without serving any medical purpose.

When the law was enacted, only six of the state’s 44 abortion clinics met the new requirements. A court injunction allowed about 20 to remain open, but even with the high court victory, most of those that closed their doors never reopened.

The Supreme Court’s decision in the case made it more difficult for other states to impose restrictions without providing medical or scientific evidence. Judges even extended the court’s reasoning to other restrictions, such as limits on voting rights. 

In Louisiana, state legislators and government officials argued that the admitting privileges requirement would not have such a severe impact. When the justices refused last February to let the law take effect while legal challenges continued, Kavanaugh said that contention was worth testing. But Chief Justice John Roberts joined the court’s four liberal justices in blocking the law.

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“We have no reason to believe that any clinic would close,” says Louisiana Solicitor General Elizabeth Murrill, who will argue the case Wednesday.

The state, with backing from the Trump administration and scores of anti-abortion groups, contends the law is aimed at improving health and safety measures at abortion clinics. “We shouldn’t be substituting safety for access,” Murrill says.

But Julie Rikelman of the Center for Reproductive Rights, who will argue the other side Wednesday, says hospital privileges are elusive for physicians who provide abortions and unnecessary when just one in 400 patients needs hospitalization. 

On the other hand, abortion rights advocates point out, most of the nearly 10,000 women seeking abortions in Louisiana annually are poor and unable to travel long distances for the overnight stays state regulations require. 

Trump’s ‘pro-life justices’

Abortion is among the most emotionally fraught issues to come before the court, which may be why the justices pick and choose cases carefully.

It took almost 20 years after Roe v. Wade before the court reinforced both the right to abortion and states’ right to impose some restrictions in 1992’s Planned Parenthood v. Casey. Between 2000 and 2007, the court struck down a state law banning late-term abortions, then upheld a similar federal law. 

The justices last term upheld an Indiana law requiring the burial or cremation of fetal remains following an abortion. But they refused to consider that state’s effort to ban abortions based on sex, race or disability, as well as Alabama’s effort to ban a particular second-term method of abortion.

Louisiana’s statute was passed in 2014 but struck down by a federal district judge after trial three years later. It was resurrected in a 2-1 ruling by a federal appeals court panel, and the full appeals court voted 9-6 against rehearing the case. Judges appointed by Trump all voted with the majority.

Despite Roberts’ decisive vote a year ago to delay the law’s implementation, the court is considered likely to side with Louisiana. Roberts sided with Texas in 2016, and since then Kavanaugh and Associate Justice Neil Gorsuch have joined the court. A ruling in favor of Louisiana would drive home Trump’s 2016 pledge to appoint pro-life justices.

“We think it could be a landmark case,” Aden says. “That would reset the table in a huge way across the country.” 

For abortion opponents, Kavanaugh has been viewed as the crucial fifth vote. He has praised former Chief Justice William Rehnquist’s dissent in Roe, and he dissented as a federal appeals court judge from a 2017 decision allowing an undocumented teenager in government custody to get an abortion. 

But even with a 5-4 conservative majority, the court has not shown much interest in overturning Roe. Roberts prefers incrementalism, and Kavanaugh during his 2018 confirmation hearings referred to the high cout’s abortion rulings as “precedent on precedent.”

Says Miller: “I feel pretty strongly that the Roberts Court is not going to reverse Roe.”

That would be a silver lining for Pittman, but her immediate concern is keeping Hope alive. 

“So much of my time has become embroiled in fighting the fight,” says the 62-year-old administrator, who has worked at the clinic since 1992. “It’s become all-consuming. My day-to-day job has taken a back seat.”

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