A Louisiana law that requires abortionists to have hospital admitting privileges close to where the procedure takes place is unconstitutional, the Supreme Court ruled in a 5–4 vote.
Enacted in 2014, Louisiana’s Act 620 required an abortion-providing medical doctor to have “active admitting privileges”—meaning the physician is a member of the hospital’s medical staff and has the ability to admit patients and provide diagnostic and surgical services—at a hospital within 30 miles of where an abortion is provided. Violations can be punished with imprisonment, fines, and license revocation.
The Trump administration criticized the court ruling, which tees up partisan fights this election year, putting the abortion issue on the political front burner.
“States have legitimate interests in regulating any medical procedure—including abortions—to protect patient safety,” White House press secretary Kayleigh McEnany said in a statement. “Instead of valuing fundamental democratic principles, unelected justices have intruded on the sovereign prerogatives of state governments by imposing their own policy preference in favor of abortion to override legitimate abortion safety regulations.”
Sen. Tim Kaine, a Virginia Democrat who was his party’s vice-presidential candidate in 2016, lauded the decision.
2016 Precedent
Justice Stephen Breyer wrote the plurality opinion, representing his views along with those of three other liberal justices. Chief Justice John Roberts wrote his own separate concurring opinion agreeing with the result. Four conservative justices dissented.The month before oral arguments, which took place on March 4, the Supreme Court temporarily stayed enforcement of the Louisiana law, a move suggesting most of the justices already believed the law might be unconstitutional. The vote for that was also 5–4, with Roberts siding with the liberal justices.
The Louisiana law “is almost word-for-word identical to Texas’ admitting-privileges law,” which the Supreme Court struck down 5–3 in Whole Woman’s Health v. Hellerstedt, a 2016 opinion, Breyer writes for the court in the new decision.
In the previous decision, the Supreme Court agreed with a trial court finding that the Texas statute “offers no significant health benefit,” and made it “impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety,” Breyer writes.
This places “a substantial obstacle in the path of women seeking an abortion,” and without any health-related benefit, made the trial court conclude the law “imposes an undue burden and is therefore unconstitutional.”
Although an appeals court in the Louisiana case upheld Act 620, it found the trial court was mistaken on the facts. The Supreme Court disagrees and determines that those factual findings by the trial court were correct, Breyer writes.
Health Concerns Versus ‘TRAP’
Louisiana had argued that its admitting-privileges law screens out incompetent physicians and promotes good health by making sure a patient who suffers complications can be promptly admitted to a nearby hospital.Louisiana Solicitor General Elizabeth Murrill told the justices during oral arguments that Act 620 was “justified by abundant evidence of life-threatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from post-abortive women, testimony from doctors who took care of abortion providers’ abandoned patients.”
The unhygienic, unsafe practices in some of the nation’s lightly regulated abortion clinics came to light during the trial of Philadelphia abortionist Kermit Gosnell. In 2013, Gosnell, whose clinic was filled with blood-covered furniture and dirty medical instruments, was sentenced to life imprisonment on three counts of first-degree murder for stabbing three babies born alive with scissors.
Abortion rights advocates counter that the law is an unconstitutional sham intended to chip away at abortion rights established in 1973’s Supreme Court ruling in Roe v. Wade, and an example of what they call a “TRAP” law that imposes “targeted restrictions on abortion providers.” They say such laws make it more difficult to provide abortions, without actually making them safer.
The Supreme Court came under rhetorical fire from Democrats as it was hearing the case in March.
At a pro-abortion rights rally beside the courthouse steps while oral arguments were underway, Senate Minority Leader Chuck Schumer, a New York Democrat, vowed unspecified retribution against conservative justices Neil Gorsuch and Brett Kavanaugh should they vote to uphold the law under challenge.
“They’re taking away fundamental rights,” Schumer told the crowd. “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind! And you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
Chief Justice Roberts released a statement later that day condemning Schumer’s remarks and indicating the justices would not be swayed by them.
