WASHINGTON — The battle over a Louisiana law that would require abortion providers to have admitting privileges at local hospitals could soon come to the national forefront as the U.S. Supreme Court weighs whether the law should be allowed to take effect.
The court has added the Louisiana case to its Oct. 1 conference agenda, ahead of the Oct. 7 start of its upcoming court session. The results of the justices' deliberation — whether the high court will take up the law for further review — could be revealed days or months later, at the Court's preference.
Abortion rights advocates challenging the law say the Supreme Court should reach a decision without hearing oral arguments because they believe the court already ruled on the matter when it struck down an identical Texas law three years ago.
The court could reach the same conclusion and nullify the Louisiana law, decide to hear oral arguments before ruling or effectively let the law take effect by declining to take up the case.
Conference sessions are held behind closed doors and typically guarded with great secrecy.
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While it's unknown when the court's decision will be revealed, the case has drawn intense national interest as the first major abortion restrictions test for the court since a pair of Trump nominees were seated. Trump has vowed to appoint justices with an eye on overturning the landmark 1973 Roe v. Wade decision that established the legal right to abortion.
Act 620, which passed the Louisiana Legislature in 2014 but has never gone into effect due to court battles, is being challenged by a pair of Louisiana doctors, backed by the Center for Reproductive Rights, who say it’s too onerous and threatens to shutter Louisiana's remaining abortion clinics.
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Louisiana Attorney General Jeff Landry, whose Department of Justice is defending the law, has argued that the goal of the law is to protect women and that justices should let it stand.
"There is no dispute that doctor competency matters, even in abortion practice, and that doctors who perform abortions in Louisiana should be adequately credentialed," the state's attorneys wrote in their most recent petition to the court in support of the law. "Nor is there any dispute that, absent Act 620, Louisiana hospitals credential doctors more thoroughly than Louisiana abortion clinics — which barely credential them at all."
The law’s opponents argue that the safety claim shouldn't pass legal muster.
“The Court held in (the Texas case) that admitting privileges laws do not confer medical benefits sufficient to justify their burdens on women’s abortion access,” they wrote in a petition to the court this month. “Louisiana’s attempts to tell a different story in its state and to recalibrate the undue burden framework fail at every turn.”
The Supreme Court temporarily halted the Louisiana law just hours before it was set to take effect in February to allow further review, after the conservative 5th U.S. Circuit Court of Appeals refused to strike down the law.
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In the months since, the debate over the law's merits has quietly played out through a series of court filings from both sides, as well as interested parties.
The high court's decision to delay the law's implementation came on a 5-4 decision, with Chief Justice John Roberts siding with the more liberal wing of the court — Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Justices Neil Gorsuch and Brett Kavanaugh, Trump's appointees, were not on the bench in 2016 when the the court, in a 5-3 decision, deemed the Texas admitting privileges law unconstitutional. Both sided with allowing Louisiana's law to take effect.
The admitting privileges law has remained unenforceable while it’s being challenged in court, but state lawmakers have continued to pass even tighter restrictions, including a law this year that would prohibit women from ending a pregnancy once a fetal heartbeat has been detected. Similar to a previous law limiting abortion to 15 weeks, Louisiana’s “heartbeat” law can take effect only if Mississippi’s similar law is upheld in court.
Louisiana Gov. John Bel Edwards, the only Democratic governor in the Deep South, is a supporter of anti-abortion legislation and signed the heartbeat bill into law.
It effectively would ban abortion as early as six weeks of pregnancy.
Louisiana currently bans abortions after 20 weeks of pregnancy and requires a 24-hour waiting period between first consultation and when a pregnancy can be terminated.
Earlier this year, an independent poll found nearly a quarter of Louisiana residents said abortion should be outlawed, even in cases of rape and incest. That rate was higher than any other state, according to the nonpartisan Public Religion Research Institute’s survey.
About 10,000 abortions are performed in Louisiana each year. Louisiana has three abortion clinics — down from five in 2014.
Only one of the clinics currently would meet the admitting privileges requirement, and critics of the 2014 law have argued that it would shutter the other two, crippling access to abortions for thousands of Louisiana women.
Abortion rights advocates have claimed in court filings that most physicians who provide abortions in Louisiana had been unable to obtain admitting privileges since the law was passed in 2014.
Throughout the summer, interested parties have submitted arguments to the court in favor of or against the law, providing justices with dozens of pages worth of interpretations of the case.
The American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, the American Academy of Pediatrics, and several other health care organizations came out in opposition to the Louisiana law.
“There is no medical benefit to a local admitting privileges requirement for abortion providers,” the groups wrote to the court. “Abortion is an extremely safe procedure, and patients who obtain abortions rarely require hospitalization.”
The health care providers further object to the requirement that admitting privileges be with a hospital no farther than 30 miles away.
“Of the small number of patients who seek hospital care following an abortion, most do so the day after the procedure or later,” they wrote.
Meanwhile, Operation Outcry Women Injured By Abortion, a group representing women who’ve had abortions and now oppose abortion rights, came out in favor of the law.
“Unfortunately, abortion practitioners across the nation fail to perform their duty to present all the relevant facts, both positive and negative for abortion, so that women can make an informed decision,” they wrote in their filing.
A group of former judges and Justice Department officials wrote to the court that “lower courts must adhere to the decisions of this Court” citing the Texas decision.
“That principle is a fundamental aspect of our constitutional system, and is essential to maintaining the rule of law,” they write, without getting to the abortion debate.