High court revisits abortion law akin to one struck down in 2016

Reviewed by James Ives, M.Psych. (Editor)Feb 28 2020

On Tuesday, the Supreme Court is set to hear an abortion case that may sound familiar. That's because the state restriction in question is almost identical to one the court overturned in 2016.

At the heart of the current case, June Medical Services LLC et al. v. Russo, is a Louisiana law passed in 2014 that requires doctors who perform abortions in the state to have "admitting privileges" at a hospital no more than 30 miles from the clinic where the abortion is performed.

Two years after the Louisiana law passed, the Supreme Court struck down a Texas abortion law — the law on which the Louisiana law was based - in the case Whole Woman's Health v. Hellerstedt. In that 5-3 ruling, the justices said the admitting privileges requirements did not benefit women's health and created an "undue burden" for women seeking abortion services.

The state of Louisiana argues that while the laws might be substantially similar, the impact would be different in Louisiana than it was in Texas, where initial implementation of the requirements resulted in the closure of more than half of the state's abortion clinics. Louisiana officials wrote in their legal brief that when the court struck down the Texas law, it "never purported to foreclose a different result on a different record in a different jurisdiction."

And, they say, the result in Louisiana would not present an undue burden on women seeking abortion, mostly because the state is considerably smaller than Texas, so women would not have to travel as far if a particular clinic were to close.

Abortion-rights supporters disagree. "The goal of the law was to shut clinics down," said T.J. Tu, a senior counsel at the Center for Reproductive Rights, whose attorneys will argue the case before the Supreme Court. "That was the known and intended objective in passing this law."

Neither side expects the case to lead to an overturn of Roe v. Wade, the 1973 case that declared a nationwide right to abortion. But it is important to watch because this will be the first major abortion case to be argued before the high court since Justice Brett Kavanaugh replaced abortion swing voter Anthony Kennedy. Kennedy was part of the majority that invalidated the admitting privileges requirement in Texas.

Also, nearly a dozen states still have admitting privileges laws on the books, although most are not enforced. Should the court reverse the 2016 Texas ruling (a goal of groups opposed to abortion), more states could enact such laws.

The court's preservation of the Louisiana law could mark an interesting strategic shift for abortion foes. After the Texas decision, some of these groups said they would shift their strategy away from anti-abortion efforts such as admitting privileges requirements, which they said are designed to promote the health and safety of women. Instead, they vowed to concentrate on getting states to pass laws banning abortion at roughly 20 weeks of pregnancy.

Abortion-rights activists say mandating admitting privileges is an arcane standard for determining who should be allowed to offer abortions. They say that, in the modern era, privileges are more of an economic concern for hospitals than any mark of quality.

But let's back up a minute. Admitting privileges refer to the right of a doctor to admit patients to a particular hospital to perform a specific service or services. Before granting such privileges, hospitals generally review a physician's credentials, his or her license and any history of malpractice claims.

Such hospital privileges used to be the norm; pretty much every doctor was directly affiliated with one or more hospitals; general practitioners often visited their hospitalized patients in the morning or evening or both, while seeing patients in their offices the rest of the day. But with the rise of hospitalists, who care only for inpatients, fewer doctors who perform mainly outpatient care have admitting privileges because their patients' hospital care is provided by others.

In passing the law, Louisiana argued, the legislature was told that "the process for obtaining admitting privileges serves to vet physician competency" and that "competent abortion providers would be able to obtain privileges."

While that "sounds good on paper," said Tu, "the reality is they provide no benefit to women's health or safety."

The American College of Obstetricians and Gynecologists agreed, writing in its Supreme Court brief: "The process of obtaining admitting privileges is specific to a hospital-based practice and the business of operating a hospital — it has nothing to do with whether a clinician is qualified to perform abortions on an outpatient basis."

Opponents of the law argue that because abortion complications requiring hospitalization are rare, abortion doctors often can't get hospital admitting privileges because they don't admit enough patients to the hospital.

In fact, last fall the Department of Health and Human Services eliminated its requirement for physicians who treat Medicare or Medicaid patients at ambulatory surgical centers to have admitting privileges as part of a package of rules HHS deemed "obsolete and burdensome."

Those on both sides of the abortion debate are watching this case closely for other reasons.

More than 200 Republicans in Congress have asked the court to use the Louisiana case to overturn Roe v. Wade, although few legal analysts predict that will happen.

The future of abortion litigation is also in the balance. Many anti-abortion groups - and the state of Louisiana — are urging the court to rule that abortion providers can no longer sue on behalf of their patients.

"There is no reason to believe [the abortion clinics'] patients are hindered in challenging the law if they wish to do so; women seeking abortions have litigated their own constitutional challenges many times before," the state wrote in its brief. That would mean future cases could be brought only by individual women - more Jane Roes — rather than by clinics such as Whole Woman's Health.

Tu said such a ruling would "have a hugely destabilizing effect on abortion litigation. Patients are not in a good position to bring these cases."

No matter what happens, the case is likely to be noteworthy amid a half-century of abortion-related jurisprudence. The court is expected to rule on the case by the end of the current term, in late June.

HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN's chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.