The Supreme Court ruled Monday to block a Louisiana law that would have required all abortion providers in the state to obtain hospital admitting privileges. In a 5-4 decision, with Chief Justice John G. Roberts Jr. as the deciding vote, the court ruled that the law places unconstitutional restrictions on women seeking abortions, reaffirming a nearly identical decision issued four years ago in Whole Woman’s Health v. Hellerstedt.
This is the first case on abortion the Supreme Court has heard since President Trump appointed two new conservative justices, Justice Neil M. Gorsuch and Justice Brett M. Kavanaugh. Advocates on both sides of the debate have been waiting to see how a now solidly-conservative Supreme Court will rule on the issue. While clinic directors are relieved by this outcome, some said it doesn’t feel like a major, groundbreaking victory.
“It’s just the court saying, ‘We agreed with our decision four years ago.’ This win is purely just a reaffirmation of Whole Woman’s Health,” said Tammi Kromenaker, executive director of the Red River Clinic, the only abortion clinic in North Dakota. It was hard to understand why the court even agreed to hear the same case again, just four year later.
Roberts ruled against the law in Whole Woman’s Health — but switched his vote this time, he said, because the court must uphold precedent.
“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike,” Roberts wrote. “The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents."
If the Louisiana law had been upheld by the court, it would have severely limited abortion access across the state, leaving just two doctors statewide who could legally perform abortions, and opening the door for other conservative states to pass similar legislation. Admitting privileges, which allow doctors to see patients in a hospital operating room, can be difficult to get. Since abortion clinics rarely send patients to the hospital, it doesn’t make financial sense for hospitals to extend privileges, said Kathaleen Pittman, the administrator at Hope Medical Group, one of the plaintiffs in June v. Russo. In Louisiana, a deeply antiabortion state, hospitals are also reluctant to appear to support abortion rights.
The Louisiana law was essential for women’s safety, anti-abortion advocates say. Abortion providers need hospital admitting privileges to ensure that women can move smoothly between the clinic and a local hospital if something goes wrong, says Catherine Glenn Foster, the president and chief executive of Americans United for Life.
“As long as abortion is legal, it must be as safe as we can possibly make it for women,” Foster said. “It is simply not acceptable for us to allow women to be abandoned at the hospital door.” (Approximately one in 10,000 emergency room visits for women ages 15 to 49 results from an abortion complication.)
Clinic directors hope the Supreme Court’s ruling might send a message to state legislators in conservative states, said Kwajelyn Jackson, executive director at the Feminist Women’s Health Center in Atlanta.
After the appointments of Gorsuch and Kavanaugh, Republican legislators moved swiftly to unveil antiabortion bills. Beginning in January 2019, three months after Kavanaugh’s appointment, states across the country proposed, and passed, a string of highly restrictive abortion bans. Five states outlawed abortion after 6 weeks gestation. Alabama outlawed abortion at any point after conception. The legislators were testing the waters, proposing legislation that the old court certainly would have struck down — to see how far right the new court might be willing to swing on abortion.
But those bans — all of which have since been challenged in district and circuit courts — were never going to pass, experts agreed, placing restrictions on abortion that were clearly unconstitutional: The real test would come if and when the Supreme Court issued an opinion in June Medical Services v. Gee, since renamed as June Medical Services v. Russo.
“I hope it [will] show that the courts cannot be manipulated — that the Supreme Court is not the plaything of the sitting president,” said Jackson.
Georgia’s legislature proposes a new antiabortion bill almost every session: A ruling like this won’t stop them, she said. But it might “change their tactics.”
“There was a clear strategy to put forward things with the intention of moving them through the courts so there could be an opportunity to overturn Roe,” Jackson said. Now that legislators see there is a limit to how far right the Supreme Court will move on abortion, maybe some of those strategies will shift.
In North Dakota, Kromenaker is not optimistic.
“I don’t think one case, one ruling, will make a big impact on the North Dakota legislature,” she said.
For as long as she can remember, her clinic has been a plaintiff in a lawsuit against some piece of antiabortion legislation. It’s hard to imagine that a reaffirmation of a ruling made four years ago will do much to deter her state legislators, she said. She expects the bigger test will come with the 2020 presidential election. If Trump doesn’t win, that might have a “chilling effect” on antiabortion legislation, she says.
North Dakota is the only state in the country that currently requires abortion providers to obtain admitting privileges. The Supreme Court’s 2016 ruling in Whole Woman’s Health was technically limited to Texas, said Kromenaker: It did nothing to change the situation in North Dakota. Still, the requirement hasn’t posed a major issue, as it would have in Louisiana: Every two years, Kromenaker applies to a local hospital for admitting privileges for the doctors at Red River. She’s never had a problem renewing them.
In June Medical Services v. Russo, Kromenaker was more worried about the Supreme Court ruling on the question of third-party standing. When the court agreed to hear this case, they also accepted a petition filed by the state of Louisiana, asking the court to examine whether the abortion clinic that had filed the lawsuit had legal standing to do so. Abortion clinics and doctors have had the legal right to challenge antiabortion legislation, on behalf of patients, since Roe v. Wade. It was a “major relief,” Kromenaker said, to learn that wouldn’t change. In North Dakota, Kromenaker can’t imagine finding a steady stream of patients who would be willing and able to challenge antiabortion bills.
It would have been a “perfect storm,” Kromenaker said. “Legislators will say, ‘Let’s pass this terrible law, because nobody is going to challenge it. No one is going to put themselves out there.”
Tonight, Kromenaker will get on Zoom to celebrate the decision with staffers from other abortion clinics across the country, she says. But she won’t spend too long basking in the victory.
“There are still forced waiting periods, legal delays, all sorts of restrictions,” she said.