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On Roe Anniversary, Abortion Foes, Supporters Look to Next Case

As pro-choice and pro-life groups marked on Wednesday the 47th anniversary of the landmark Roe v. Wade Supreme Court decision legalizing abortion, advocates on both sides of the issue are looking ahead to March, when the high court will hear another important case on the issue.

The case of June Medical Services v. Gee involves a Louisiana law passed in 2014, which would bar doctors from providing abortion services in the state unless they have admitting privileges at a hospital within 30 miles of where they provide abortion care.

The Louisiana law, known as Act 620, is identical to a Texas law in another Supreme Court case, Whole Woman’s Health v. Hellerstedt. The high court struck down the Texas law in 2016.

Supporters of the law say that states have a duty to make sure abortion procedures are safe.

“If a complication occurs, requiring transfer to a hospital, these providers cannot participate in treatment, which is left to a hospital physician who does not know exactly what happened and may not even be able to communicate with the physician who performed the abortion,” the Association of American Physicians and Surgeons, a group describing itself as being dedicated to “preserving the sanctity of the patient-physician relationship and the practice of private medicine,” said in a statement. “Other ambulatory surgical facilities must meet this requirement.”

But opponents of the law say admitting privileges requirements do not improve patient safety but instead lead to the closing of abortion clinics.

“Based on what we know from previous research, we can say that the admitting privileges law will increase the considerable barriers to obtaining an abortion that Louisiana women already face, and thus harm women’s health,” Sarah Roberts, DrPH, of the University of California San Francisco, said in a webinar on the case.

After the law was passed, the Center for Reproductive Rights (CRR), a pro-choice organization, sued in federal district court to have it overturned. The court granted a temporary restraining order so abortion providers could have time to seek admitting privileges in case the law was upheld. In January 2016, the district court granted a preliminary injunction to block the law, but the state of Louisiana appealed that decision, and an appeals court lifted the injunction a month later. The CRR then requested that the Supreme Court grant an emergency stay of that decision, which was granted in early February, again blocking the law from taking effect.

In June 2016, the Supreme Court issued its decision on Whole Woman’s Health v. Hellerstedt, and the appeals court sent the Louisiana decision back down to the district court for reconsideration. In April 2017, the district court declared the Louisiana law unconstitutional, but in September 2018, the appeals court again reversed the district court’s decision. Once again, the plaintiffs asked for and were granted an emergency stay of that decision by the Supreme Court.

The plaintiffs then appealed the decision itself to the Supreme Court, which agreed in October 2019 to hear the case. Oral arguments are slated for March 4, 2020.

Louisiana’s abortion providers have been trying to get admitting privileges to comply with the law, but have not been successful, according to Elisabeth Smith, chief counsel for state policy and advocacy at the CRR. If the Supreme Court upholds the law, two of the state’s three abortion clinics will shut down, leaving the state with only one abortion provider, who had admitting privileges prior to the law’s enactment, to provide care for the state’s approximately 1 million women of reproductive age, she said.

One issue raised by supporters of the Louisiana law is whether the clinics and providers that the CRR is representing have standing to sue, since they aren’t patients.

“Plaintiffs generally may file a lawsuit only to protect their own rights, not the rights of others,” Judicial Watch, a conservative legal organization, said in a press release. “In this litigation, the lower courts allowed third party abortion interests to challenge the law on the theory they represent the interests of women.”

However, “the plaintiffs’ actual interests were made clear: unfettered access to perform abortions free of any regulation, ostensibly for financial gain,” the release said.

“No individual women appeared as plaintiffs to the case. No women testified that they preferred not to have their abortion providers have admitting privileges or that they preferred abortion providers ignore the FDA-approved use of abortion medications. It defies logic to think women would not have an interest in these things, hence the conflict of interests between the litigant abortion providers and the third-party women right holders.”

But Smith said that having abortion providers sue on behalf of patients has a 50-year precedent.

“The vast majority of abortion cases have been litigated by providers and clinics,” she said, adding that the center is expecting a decision in the case during the current term. “It could come out any time after argument, but I imagine many justices will want to say something, so we expect it will come out closer to the end of the term, pending completion of the majority opinion and any dissents that may be written.”

The case comes at a time when many state legislatures are passing laws to try to restrict abortion, even as polling shows that the majority of Americans support Roe v. Wade and do not want it overturned. A total of 450 laws restricting the procedure — such as requiring admitting privileges, adding waiting periods, barring abortion later in pregnancy, or increasing requirements for clinic buildings — have been enacted by state legislatures since 2010, Smith said.


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