The Center for Reproductive Rights on Wednesday asked the Supreme Court to throw out a Louisiana abortion restriction they say is identical to a law the justices struck down almost three years ago.
The Center for Reproductive Rights has requested for the justices to strike the law without taking it up for oral arguments, given that the case is so similar to Whole Woman’s Health v. Hellerstedt. In that decision, the Supreme Court ruled that obligating doctors who provide abortions also to have admitting privileges to local hospitals was unconstitutional because it got in the way of women having access to abortion.
“That’s how clear cut this new case is,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a phone call with reporters Wednesday. “There is no need for new arguments.”
If the law in Louisiana, which imposes the same requirements on doctors, is allowed to stand, then two of the three remaining clinics that provide abortion in the state are expected to close.
Following the latest petition, the state of Louisiana will have roughly 30 days to respond to the filing once it arrives at the Supreme Court, though it could ask for an extension. Justices may consider before the end of this term whether they will take up the case and could do so as early as October. T.J. Tu, the lead attorney on the petition, suggested that such a quick timeline would be possible but unexpected.
If the Supreme Court decides to take up the case, it may strike the law directly or respond instead by having a full round of legal briefing and oral argument.
It’s not clear how the justices will rule. The Whole Woman’s Health ruling was handed down 5-3 because the Supreme Court was short-handed following the death of Justice Antonin Scalia. Since then, the Senate has confirmed Justices Neil Gorsuch and Brett Kavanaugh, tilting the court more conservative and raising anew the prospect of restrictions on abortion.
Tu said the Supreme Court should strike the law, pointing to statements Gorsuch and Kavanaugh made during confirmation hearings in which they said abortion had already been upheld by the Supreme Court.
The justices, he said, asserted that “it is important to follow Supreme Court precedent.”
“Our case says to the court: ‘Prove it,'” he said.
The issue of admitting privileges has landed back at the Supreme Court because in September the majority of the 5th Circuit Court of Appeals ruled to uphold the Louisiana law and then declined a request for the full court to reconsider the panel’s decision. The Supreme Court then temporarily blocked the law from taking effect in February, in a 5-4 decision.
Kavanaugh wrote the dissent, in which he argued the case “largely turns” on whether Louisiana’s three doctors who provide abortions can obtain the necessary admitting privileges during a 45-day regulatory transition period. The plaintiffs then could bring a challenge to the law if the doctors were unable to obtain admitting privileges at the end of that period, he wrote.
Supporters of the doctor requirements say abortion providers should be able to access a hospital in case anything goes wrong during the procedure, but opponents counter that the regulations aren’t medically necessary because data show that abortions rarely carry complications.
Hospitals often deny abortion providers admitting privileges not just because of ideological differences but because doctors who provide abortions rarely need to access a hospital. Tu said doctors had been shut down when they tried to obtain them.
The Center for Reproductive Rights is representing Hope Medical Group, which would close if the regulations were allowed to proceed. Kathaleen Pittman, the administrator for the clinic, said that protests had escalated and become “nasty,” given that only three clinics in the state remain and that more protesters can be concentrated there. She said she worried the pressure on clinics and women who try to obtain abortions would worsen if only one were to remain.
