On Wednesday, the Supreme Court heard oral arguments in its first abortion case since the confirmation of Justices Neil Gorsuch and Brett Kavanaugh. While outside the high court Sen. Chuck Schumer stoked the anger of abortion apologists by threatening the newest justices, inside the courtroom the lawyers representing the abortion providers cemented a new reality: that the abortion industry doesn’t want “safe, legal, and rare,”—it wants “unsafe, legally.”
That reality became clear in an exchange with Justice Kavanaugh about the Louisiana law under review in June Medical Serv. v. Russo, Sec. LA Dep’t of Health. That law requires abortion providers to have admitting privileges at a nearby hospital.
A lower court had struck the Louisiana law, holding the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt controlled. That decision held a Texas law requiring abortionists to maintain admitting privileges at a hospital within 30 miles of the clinic was unconstitutional. But on appeal, the Fifth Circuit Court of Appeals set aside Hellerstedt, reasoning that unlike the situation in Texas, the Louisiana law would not create an unconstitutional burden on a women’s “right” to abortion.
On appeal to the Supreme Court, the abortion providers argued that the Louisiana law, like the Texas law, placed an undue burden on women’s ability to access abortions. But Kavanaugh pushed their attorneys in a different direction: “If a state passed an admitting privileges law there, and suppose a state had ten clinics and two doctors for each clinic, but all 20 doctors could easily get the admitting privileges, so that there would be no effect on the clinics, no effect on the doctors who perform abortions, and, therefore, no effect on the women who obtain abortions,” Justice Kavanaugh hypothesized, “would a law be constitutional in that state?”
At first, Julie Rikelman, an attorney for the Center for Reproductive Rights arguing on behalf of the abortionists, deflected: “That law would have no benefit, Your Honor, and it may pose a much harder question than this case.” But when pushed, Rikelman made clear that abortion advocates see no valid purpose for admitting-privilege laws of the kind at issue and thus all similar laws would be unconstitutional.
Such an argument is shocking because, as Elizabeth Murrill, the attorney who argued on behalf of the Louisiana Department of Health and Hospitals, made clear, Louisiana requires doctors who perform a dilation and curettage (D&C) after a miscarriage—a procedure Justice Ruth Ginsburg declared “very much alike” the typical surgical abortion—to have admitting privileges at a hospital within a 30-mile radius of the clinic, unless the doctor held “a residency in the proper scope of care.”
So, while states can and do regulate doctors who perform a D&C following a miscarriage to ensure patients’ safety, abortion advocates maintain similar laws are unconstitutional when the D&C is performed on a woman carrying a still living human being. Yet, as the record in this case shows, such admitting privileges benefit women who suffer complications, such as the patients of Doe 3—one of the unnamed plaintiffs—who testified he had to transfer four patients to a nearby hospital for treatment of punctured uteruses and hemorrhaging. Doe 3, who held admitting privileges, provided the care at the hospitals.
Further, if anything, the facts of this case show the state has an even stronger interest in regulating the other abortion doctors involved in this case. For instance, one of the doctors, anonymously named Doe 1, is not an obstetrician or a gynecologist, but a graduate of the Saba University medical school in the Dutch Caribbean, where he studied “Family Medicine and Addiction Medicine,”—although he also has never actually practiced family medicine.”
Additionally, “Doe 1 conceded he had no training in abortion practice during his medical school or residency; instead he was principally taught on-the-job by Doe 3.” Doe 3 also “admitted he hired a radiologist and an ophthalmologist to perform abortions.” These are the doctors the abortion industry wants women to see unimpeded by state regulations.
No wonder Justice Samuel Alito found it “amazing” that the abortion providers would claim they had standing to challenge the Louisiana law on behalf of the women of the state, when their interests “are directly contrary to those of the—those individuals on whose behalf the plaintiff is claiming to sue, . . ” But, as the liberal justices pointed out during argument, the Supreme Court has long allowed abortion providers to challenge laws regulating abortions on behalf of their patients.
Yet the Supreme Court has never directly addressed whether that should be the case given the conflict in interests at issue. Alito seemed the only justice gravely concerned by this conflict, although Kavanaugh made a passing comment in concurrence of the concern. The remainder of the right-leaning bench stayed silent on the issue of standing.
While the right of t he bench remained reticent, clear from oral argument was that the four liberal justices remain in lockstep. And should they lock up one more vote, the abortion providers will score a victory—but it will be a loss to life and to women’s health.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.
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