Justice Brett Kavanaugh signaled that he is open to state-level abortion restrictions in a high-profile Supreme Court hearing Wednesday.
The court’s most junior member, closely watched because he is a Trump appointee who could swing the balance of the court toward ruling more abortion regulations as constitutional, was speaking during oral arguments in a case on Louisiana abortion regulations similar to Texas regulations the court struck down four years ago.
Kavanaugh questioned whether it was burdensome for Louisiana to make abortion doctors get permission to check patients into nearby hospitals if they could easily apply and get cleared to do so. His questions suggested he may be willing to view the regulations as fair and not burdening to women seeking abortions, opening the door to narrowing the ruling the Supreme Court issued four years ago.
“Could you still say [the law] is unconstitutional?” asked Kavanaugh. The other justice appointed by President Trump, Neil Gorsuch, remained silent during oral arguments.
The challenge before the court, June Medical Services v. Russo, is the first major case on abortion to receive a hearing since the Republican-controlled Senate confirmed Gorsuch and Kavanaugh, tilting the court toward conservatism.
More than 200 members of Congress, all but two of whom Republicans, had asked the justices to reconsider or overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide.
But the case specifically centered on regulations passed in 2014 in Louisiana that require doctors who perform abortions to acquire admitting privileges to nearby hospitals. Doctors obtain the certification so they can check women into a hospital if something should go wrong during an abortion, and supporters argue that they should be in place to protect women.
But reported complications after an abortion are rare, and hospitals will check in women who have complications even when an abortion provider isn’t with them. For those reasons, abortion rights organizations contend the rules are intended to regulate clinics and doctors out of operation, putting abortion out of reach for women once clinics close.
The regulations were struck down before in Texas in the Supreme Court’s 2016 Whole Woman’s Health v. Hellerstedt decision. But with the latest case, the 5th Circuit went against Supreme Court precedent by upholding the regulations, saying it would be easier for doctors in Louisiana to get the admitting privileges than it was for doctors in Texas. That was in part why the Supreme Court decided to take the issue up again.
The justices stayed the Louisiana law, so it hasn’t gone into effect, but Kavanaugh dissented, writing that he was unconvinced about whether doctors could obtain the admitting privileges. His questions Wednesday indicated he entered the oral arguments still unconvinced on the matter.
But the plaintiffs in the case, represented by the Center for Reproductive Rights, urged the justices to block the regulations as they had before.
“This case is about respect for the court’s precedent,” said attorney Julie Rikelman from the Center for Reproductive Rights, who represented the arguments of the abortion clinics and doctors. She stressed throughout the questioning that the court had struck down the law before because it determined that the regulations “serve no medical benefit.”
It’s not clear the Supreme Court will rule the same way it did in 2016. The case before the court also took into account whether doctors who provide abortions were allowed to have standing when they sued on behalf of their patients. The state of Louisiana argued that the doctors didn’t have standing.
Justice Samuel Alito questioned Rikelman repeatedly on the matter. The abortion clinic, he said, may have “interests that are in conflict” with those of patients.
Rikelman, in turn, stressed that the court has allowed abortion clinics to sue on behalf of patients before, and Justice Stephen Breyer chimed in to say that it had happened in at least eight instances.
Liberal justices asserted that the regulations did not make sense. Justice Ruth Bader Ginsburg called abortions “far safer than childbirth.” Because of that, she said, doctors weren’t likely to have enough patients checked into the hospital on a regular basis, making it harder for them to qualify for admitting privileges. Such requirements, based on numbers of patients who are checked into hospitals, are sometimes used to grant certifications.
Ginsburg honed in on medication abortions, which involve a woman taking one pill at the abortion clinic and another when she has left and is typically at home. Ginsburg wondered aloud about such cases and why would it be necessary for a doctor to have admitting privileges within 30 miles when a patient would be likely to go to a hospital near her house instead.
“Most don’t have complications,” Ginsburg said. “If she did, she wouldn’t be near the clinic. She would be home.”
Elizabeth Murrill, who was defending Louisiana’s law, said it wasn’t clear how many women have complications since abortion clinics don’t follow up with women, and vice versa. She pointed out that one clinic had checked at least four patients into the hospital who suffered a punctured uterus and severe bleeding during an abortion.
Jeffrey Walk, the principal deputy solicitor general for the Department of Justice, presented a similar argument.
“[Complications] may not happen all that often, but if it does happen, it’s serious,” he said.
Justice Elena Kagan also pushed back on the state’s law. Doctors, she said, could be turned away from an admitting privilege certification for myriad reasons, including hospitals not wanting to have abortion providers linked to their facility.
