Top Court Ruling on Abortion Opens Door to More Challenges

The Supreme Court’s ruling against a Louisiana abortion law on Monday was a win for advocates, and also a warning. 

Kathaleen Pittman, director of Hope Medical Group for Women in Shreveport, Louisiana, and the plaintiff in the case, said she knows the elation can’t last, but for a day at least, the clinic celebrated its reprieve.

“It's palpable, the excitement in the air,” she said on Monday, “and everyone was trying to calm down so they can treat patients.”

In a 5-4 decision, the justices ruled against a law that required abortion providers to have admitting privileges at a hospital. That could have closed closed the clinic. Still, there are nearly 90 other statutes in the state that could be used to limit abortions. Since 2011, states have passed more than 450 laws that could curb access.

The law at issue in Monday’s case was almost identical to one in Texas that was defeated at the Supreme Court in 2016, Whole Woman’s Health v. Hellerstedt. Chief Justice John Roberts, who had dissented in the Texas case, cast the crucial and surprising vote to uphold the Whole Woman's Health decision. That defeated the Louisiana law. But he was clear to point out his decision was governed by the court's prior ruling; he did not disagree with the law.

“He continues to believe Whole Women's Health was wrongly decided at the time,” said Julie Rikelman, senior litigation director at the Center for Reproductive Rights and lead attorney for June Medical Services LLC v. Russo. That's concerning, she says, because of the “clear medical consensus” that admitting privileges laws aren't necessary for safe abortion care.

Future cases may give Roberts a chance to align with the court’s conservative majority and curtail access to abortion without going against precedent.

Amy Hagstrom Miller, owner of Whole Woman's Health and plaintiff in the 2016 Supreme Court case, is involved in five lawsuits right now in Virginia, Indiana and Texas challenging laws that add regulations for abortion providers or curtail access to abortion care. She believes the anti-abortion movement has shifted its strategy, appealing for lawmakers and judges to protect fetuses rather than women. “To me there’s a through-line with those new laws that have passed that they’re a pivot away from this pretend focus on health and safety,” she said. For instance, one lawsuit she's fighting is around whether a funeral should be required for fetuses.

President Donald Trump's appointments of Justices Neil Gorsuch and Brett Kavanaugh had brought hope in the anti-abortion movement that the newly composed court might overrule the 1973 Roe v. Wade ruling, which legalized abortion. In a brief to the court, a group of 39 senators and 168 House members argued the Supreme Court should use the Louisiana hospital admitting privileges case to overturn Roe.

While that didn’t happen, this isn’t likely to be the last abortion case heard by these conservative justices. “And the facts may be very different than this Louisiana case,” said Hagstrom Miller. That could lead to bigger shifts against abortion access.

Lawyers for an anti-abortion group, Alliance Defending Freedom, were involved throughout the Louisiana case, filing a brief arguing for the importance of hospital admitting privileges laws and assisting the state in its defense. “I genuinely do not see this changing anything,” Denise Harle, one of the Alliance attorneys, said of Monday's decision. “I think this says 'We are where we were in 2016.' And where we were in 2016 is states having the interest and momentum passing laws regulating abortions.”

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