WASHINGTON (CN) — On the conservative side of a divide shaping the Supreme Court’s first abortion case of the Trump era, Justice Samuel Alito appeared wary Wednesday of letting a clinic challenge Louisiana rules that affect its doctors.
“That’s amazing,” the George W. Bush appointee said this morning as the lawyer for June Medical Services delivered her argument.
Julie Rikelman, who is with the Center for Reproductive Rights, appeared only to vex the justice further as she argued that the court has historically allowed third-party claims from entities like June Medical that are directly regulated by the law being challenged.
“Let’s say we’re in a state where physicians’ assistants can perform abortions, and an abortion clinic wants to challenge the training requirements for physicians’ assistants,” Alito said. “It just thinks those are too onerous and there’s no justification for them. Now if they’re wrong about that, it implicates the interests of the women who may want to get an abortion. But you would say the clinic nevertheless can sue on behalf of those women?”
“This court has squarely held in many cases that a plaintiff directly regulated by the law can sue and those cases make sense for at least two reasons, your honor,” Rikelman said. “First, because a plaintiff should not be subject to severe penalties under an unconstitutional rule. And second, if the plaintiff is the one directly regulated, then it makes sense that they are the appropriate plaintiff.”
The Louisiana Legislature adopted the restrictions at issue in 2014, stipulating that doctors who perform abortions must have admitting privileges at a hospital within 30 miles of where a procedure is performed.
Though the state says the law is about patient safety, in the event of a complication, Justice Sonya Sotomayor noted the precedent for such emergencies is thin.
“Is it right that there is evidence in the record that Hope Clinic 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?” the Obama appointee asked Louisiana Solicitor General Elizabeth Murrill.
Justice Ruth Bader Ginsburg said the requirement made little sense considering that women who experience a complication after an abortion will likely not be near the clinic when they do but at home.
“Justice Ginsburg, that regulation is consistent with the regulation that we have in our office surgery regulations, so it is consistent with our regulatory structure,” Murrill said.
Ginsburg revisited this point at the hearing when Deputy U.S. Solicitor General Jeffrey Wall asserted that women experiencing medical emergencies relating to abortions normally had these critical moments in clinics.
“It would never happen when you go to the clinic just to take two pills and go home,” Ginsburg said of abortion-related medical emergencies.
“Well, if you develop a complication at home, it’s not clear that you won’t call the clinic and say to your doctor, ‘I’m having a problem,’ and your doctor will say, ‘Then go to the following hospital where I have privileges, I’ll meet you there,’” Wall said. “Now that’s not to say, as a patient, that’s necessarily what you would want. But it’s hard for me to believe that women in Louisiana wouldn’t at least want the option to be treated by the doctor they saw at the clinic.”
With the faint chants of hundreds of protesters reverberating off the courtroom windows, a constant point of reference at arguments Wednesday was the Whole Woman’s Health v. Hellerstedt decision from 2016 in which the justices struck down an identical Texas law.
“This court held in Whole Woman’s Health that the Texas admitting privileges law was medically unnecessary and its burdens were undue,” Rikelman said. “That holding should clearly apply to Louisiana’s identical law and certainly the court’s reasoning is applicable in Louisiana.”
Chief Justice John Roberts — expected to be the deciding vote in June Medical’s case — pressed the lawyer for Louisiana on this point, asking if every state statute should be subjected to the same inquiry about whether they provide any benefit.
Murrill asserted that there is a greater benefit served in Louisiana, given the evidence “that the doctors don’t do credentialing.”
The remark drew a swift rebuke from Justice Sonya Sotomayor.
“You’re making it sound like there is no state licensing of those doctors,” Sotomayor said. “They are licensed. They are regulated.”
Murrill pressed her point: “Justice Sotomayor, they are licensed by the state, and Dr. Cecllia Mouton testified specifically … that the board does not do credentialing.”
Of the eight or more abortion cases before the Supreme Court where doctors sued on behalf of the women, Rikelman said four “squarely allowed standing in precisely these circumstances.”
That precedent has sweeping implications for June Medical’s appeal.
“So if we didn’t in this case, it would require either directly or indirectly overruling eight cases of this court,” Justice Stephen Breyer emphasized.