The US supreme court heard arguments in the most high-profile abortion rights case in decades, on Wednesday morning.
The nine justices heard arguments on whether Louisiana can impose severe restrictions on abortion doctors, in a case that is controversial on several levels, June Medical Services v Russo. The restrictions would require doctors to have “admitting privileges” at local hospitals, which are difficult to obtain.
“This case is about respect for the court’s precedent,” said Julie Rikelman, lead counsel for the Center for Reproductive Rights, which is representing an abortion clinic in Louisiana.
Just four years ago, the court ruled a nearly identical law unconstitutional, in a Texas case called Whole Woman’s Health v Hellerstedt. That the highest court even took the case was incredibly rare, leading many to believe it is predisposed to restrict abortion rights.
“The Louisiana law at issue here, Act 620, is identical to the Texas law and was expressly modeled on it,” she said. If upheld, the law would “leave Louisiana with just one clinic and one doctor providing abortions”.
The issue of precedent has suddenly cast a spotlight on Chief Justice John Roberts. The court may be newly conservative-leaning, but it is not without competing interests. Roberts is often described as an institutionalist who does not like to disturb precedent, even as he has opposed abortion rights in the past.
However, he did little to tip his hand Wednesday. He asked a question to all three attorneys arguing before the court: if this law is upheld, does each state have to evaluate its benefits?
“Counsel, do you agree that the inquiry … is a factual one that has to proceed state-by-state?” Roberts asked early in the arguments.
For many years, the court had four justice in a liberal wing, four in a conservative wing. That pattern held up on Wednesday, but with another divide apparent, this one along gender lines.
Three of the court’s four liberal justices are women – the bench currently has three women in total – and all had tough questions for Louisiana’s attorneys in the case.
“Is it right that there is evidence on the record that Hope clinic” – the Louisiana abortion facility in question – “has served over 3,000 women annually for 23 years, so that’s around 70,000 women, and has transferred only four patients ever to a hospital?” asked Justice Elena Kagan.
An attorney for Louisiana, solicitor general Elizabeth Murrill, said the real rate could be higher.
“You don’t dispute that, among medical procedures, first-trimester abortion is among the safest, far safer than childbirth?” Justice Ruth Bader Ginsburg went on to ask.
If the justices uphold Louisiana’s law, with a ruling expected in June, it would have wide-reaching, immediate and severe consequences for abortion access across the US. One potential outcome is that the court upholds a law, keeping abortion legal, but in practice almost impossible to access.
Another question before the court was whether abortion doctors should be able to sue the government on behalf of their patients. That question, which looks at what is called “standing”, could revolutionize how cases against abortion restrictions are litigated.
Justice Samuel Alito Jr, who sits on the conservative wing of the court, was particularly interested in the question, and asked repeatedly whether a “conflict of interest” could rule out standing. Abortion opponents often argue doctors who provide abortions only want to make money, and describe reproductive health services as the “abortion industry”.
The court can rule as narrowly or broadly as it chooses, and with a newly rebalanced court that tilts conservative since Donald Trump’s pick Justice Brett Kavanaugh was confirmed to the court, it is extremely difficult to make predictions even after oral arguments.
Already, more than 350 legal professionals and organizations have weighed in, with “friend of the court” amicus briefs. Surveys of the American public show a majority support legal abortion.
Outside the court, a large gathering of reproductive rights activists stood on the court’s steps, shouting, cheering and chanting. A smaller, but still fervent, group of anti-abortion protesters gathered immediately opposite.
Two women flew from Mississippi to protest outside the supreme court. Derenda Hancock and Kim Gibson came from Jackson, where they both escort patients past protesters into the state’s last remaining abortion clinic.
“This is the end-all game,” said Hancock. “We’ve already been through this in Mississippi,” she said, referring to the “admitting privileges” laws in question.
In Mississippi, she said doctors performing abortions submitted 32-page applications to all seven of the state’s hospitals, she said. None would give them rights to transfer patients.
“We have protests constantly – they don’t want to deal with the hassle,” she said, referring to many hospitals’ reluctance to deal with protesters and the bureaucratic burden of doctors’ applications for a privilege that is very rarely used. Early term abortion is one of the safest medical procedures, statistics show.
