What’s New and Old in a New Supreme Court Abortion Case

(Bloomberg) -- Four years after invalidating a Texas law requiring abortion clinic doctors to have admitting privileges at a nearby hospital, the Supreme Court is preparing to consider a Louisiana law that would do the same thing. The case is being watched closely for clues as to how the court’s new conservative members approach this old debate. That’s particularly true since Louisiana introduced an argument that if accepted by the court could undermine the ability of health-care providers to challenge new state abortion restrictions nationwide.

1. What’s at stake in the Louisiana case?

Louisiana’s law, enacted in 2014, requires doctors to have privileges at a hospital within 30 miles (48 kilometers) of the abortion facility. The measure was in effect for a brief period in 2016. Opponents say the law would leave the state with only one clinic, in New Orleans, and just one abortion doctor to serve the 10,000 women who seek to end a pregnancy every year in the state. Supporters of the Louisiana measure, which carries criminal penalties, say the state is trying to protect women from unscrupulous and incompetent abortion providers. They also argue that the plaintiffs -- the director of an abortion clinic and two unidentified doctors -- lack legal standing to challenge the law on behalf of their patients.

2. How is this different from the Texas case?

In 2016, the Court ruled in a 5-3 decision that the Texas law “provides few, if any, health benefits for women” and “poses a substantial obstacle to women seeking abortions.” Louisiana’s law was upheld by a federal appeals court that said in a 2-1 ruling that its impact wasn’t as great as in Texas. The majority also blamed Louisiana doctors for not making good-faith efforts to get the required privileges.

3. What’s changed since then?

The composition of the Supreme Court, for one thing. Two new justices have been added: Trump appointees Neil Gorsuch and Brett Kavanaugh. The latter succeeded Justice Anthony Kennedy, who had been the court’s swing vote on abortion and voted with the majority to throw out the Texas law. Those changes have left Chief Justice John Roberts, a 2005 appointee of Republican President George W. Bush, squarely in the middle. Roberts dissented from Kennedy’s Texas decision, but last year he joined the four Democratic-appointed justices to put the Louisiana law on hold while the court considered whether to intervene. Kavanaugh and Gorsuch both voted to let the law take effect, hinting they were at least open to upholding it.

4. What impact might the Louisiana case have?

That depends on what the court decides and what reasoning it adopts both on the question of the law’s validity and on whether the doctors had standing to sue. A decision to uphold the Louisiana law could accelerate the efforts of conservative states that have been moving to sharply restrict abortion rights in recent years. States enacted 58 new abortion restrictions in 2019 alone, including a total ban by Alabama, according to the Guttmacher Institute, a research organization that backs reproductive rights. Should the court decide that abortion doctors don’t have the standing to represent abortion seekers, cases all over the U.S. challenging such laws could grind to a halt. Even if the court doesn’t go that far, the question of standing is likely to continue to be debated. In 2016, Justice Clarence Thomas wrote in his dissent in the Texas case that the court had been too accommodating of third-party standing in abortion cases. “When the wrong party litigates a case, we end up resolving disputes that make for bad law,” he wrote.

5. Why have abortion opponents chosen this approach?

The right to abortion was established in the court’s landmark Roe v. Wade decision in 1993 and has been under legal siege almost ever since. The groundwork for incremental approach to undermining Roe was laid in 1992, when the high court both upheld the right to abortion but said states could pass restrictions that don’t present an “undue burden” to women seeking the service. Laws aimed at clinics proved more potent than those aimed at patients, such as waiting periods or parental notification requirements.

6. What effect have the restrictions had?

The number of independent abortion clinics, which account for 60% of all abortions, has been on the decline. There were 344 in November, one third fewer than in 2012, according to the Abortion Care Network, an association of independent providers. The ranks of clinics have been thinning since the late 1980s, when the number of nonhospital providers performing 400 or more abortions per year peaked at 705. Regions that saw more restrictions also had clinic declines. The Midwest and South saw declines in abortion clinics of 6% and 9% respectively, while the Northeast and West saw clinic numbers increase.

7. What’s happened to the abortion rate?

It’s gone down, but there’s no clear evidence that it’s mainly because of the new restrictions on access to clinics -- though both sides of the debate have a stake in making that argument. Health experts and social scientists say that’s just one factor. American women were having fewer abortions even before clinic closings accelerated in the last few years. Increasing cultural acceptance of single motherhood, the recession (which was accompanied by a decline in pregnancies) and the Affordable Care Act’s contraceptive mandate are also behind the drop. Still, almost half the 6.7 million pregnancies each year are unintended, and almost half of these end in abortion.

8. Could abortion rights be overturned altogether?

It’s certainly possible that the Supreme Court could take this opportunity to overturn Roe v. Wade. Some 39 senators and 168 House members argued in favor of that in a brief to the court about this case. But experts say that’s highly unlikely, given that such a ruling would represent a major political statement in an election year.

The Reference Shelf

  • The Supreme Court’s decision striking down the Texas abortion restrictions.
  • An in-depth look from Bloomberg News at why it’s so hard to run an abortion clinic.
  • The Guttmacher Institute researches and compiles medical statistics and legislative history about abortion.
  • The Centers for Disease Control and Prevention collects data from most states for its abortion surveillance project.
  • The American Congress of Obstetricians and Gynecologists offers a resource guide for abortion, including medical guidelines and research.

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