- The Washington Times - Wednesday, March 4, 2020

Supreme Court justices put Louisiana on the defensive Wednesday, questioning whether the state’s new strict standards for abortion clinics put too much of a burden on abortion providers and therefore on the people seeking an abortion.

The case is being closely watched as the first major test of abortion law after the departure of Supreme Court Justice Anthony M. Kennedy. Advocates on both sides of the ideological divide wonder whether the conservative majority will take this chance to give states more room to experiment with restrictions.

The abortion-rights demonstrations outside the Supreme Court drew Senate Minority Leader Charles E. Schumer, who issued a stark warning to Trump-appointed Justice Neil M. Gorsuch and Justice Brett M. Kavanaugh.

“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price,” the New York Democrat told the crowd.

His rally cry provoked a rare rebuke from Chief Justice John G. Roberts Jr. “Statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” he said in a statement. “All members of the court will continue to do their job, without fear or favor, from whatever quarter.”

During the arguments, all four Democrat-appointed justices were in lockstep, signaling they don’t see any medical justification for Louisiana’s rules, which require clinic providers to have admitting privileges at nearby hospitals in case something goes wrong.

Justice Ruth Bader Ginsburg said the clinic that challenged Louisiana’s law has treated tens of thousands of patients but has had to transfer only four women to a hospital.

“Access to a hospital was required less than once a year,” she said.

She said women who do seek hospital care after an abortion have usually already gone home, rather than going straight from the clinic.

She and her fellow Democratic appointees will need at least one of the five Republican-appointed members of the court to join them — and all eyes were on Chief Justice John G. Roberts Jr., who this year sided with them in temporarily halting the law while the legal arguments proceeded.

The chief justice, in the few questions he asked, wondered whether the case was different than a Texas law, which the high court struck down in a 5-3 ruling in 2016. The chief justice sided with Texas in that case, but he and Justice Brett M. Kavanaugh wanted to know whether Louisiana felt the benefits of safety regulation in their state were different than in Texas.

Elizabeth Murrill, solicitor general of Louisiana, said the need for the law in her state was strong.

“Louisiana’s decision to require abortion providers to have admitting privileges was justified by abundant evidence of life-threatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from post-abortive women, testimony from doctors who took care of abortion providers’ abandoned patients,” she told the justices.

Justice Samuel A. Alito Jr. wondered why an abortion clinic was bringing the challenge to the law, rather than someone seeking an abortion.

“The constitutional right at issue is not a constitutional right of abortion clinics, is it? It’s the right of women,” he said.

Julie Rikelman, who represented the abortion providers, said the court’s precedent suggests her client, June Medical Services, is burdened under the law and can bring the case.

“This case is about respect for the court’s precedent,” she said.

Under Supreme Court precedent, states are allowed to enact some restrictions on access to abortion, such as an informed consent period, but they cannot significantly undercut the right of a woman to the procedure.

Louisiana state Sen. Katrina R. Jackson, a pro-life Democrat who authored the state’s clinic legislation, said she inferred from the arguments that the court is looking at the issue on a case-by-case basis, differentiating it from the earlier dispute in Texas.

“My hope is not in the Supreme Court — it’s in God,” she told The Washington Times. “My prayer is they make a fair decision.”

A decision over the legality of the Louisiana law is expected by the end of June.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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