Since 1973, when the court established a constitutional right to abortion in Roe v. Wade, Louisiana has enacted 89 abortion restrictions, the most of any state. The restriction at issue now requires doctors performing abortions to have admitting privileges at nearby hospitals.
The goal of all of them, Pittman said, is to drive abortion clinics out of business.
“Our legislators have been very clear and vocal that they would love Louisiana to become the first state to be without an abortion provider,” she said. “Roe means nothing if you can’t access abortion.”
Two justices appointed by President Donald Trump have joined the court since the last time it heard a major abortion case, and the arguments Wednesday will illuminate the impact of that rightward shift. And the decision in the case, June Medical Services v. Russo, No. 18-1323, expected by June, will provide the first concrete evidence of how a transformed court regards the breadth and future of the constitutional right to abortion.
On a recent morning at the clinic, a half-dozen women, all accompanied by a friend or a partner, waited to see counselors and doctors. One, a 22-year-old cashier, said she had returned after the 24-hour waiting period mandated by state law and would shortly have an abortion. At her first visit, the clinic had been required to show her a sonogram, let her hear a fetal heartbeat and tell her various things about the development of the fetus, the risks of the procedure and alternatives to abortion.
The woman, who asked not to be identified lest her parents disown her, said she should not have been required to navigate the state-imposed hurdles.
“I did get an ultrasound, and they asked me if I wanted to see it or not,” she said. “I chose not to.”
As for the waiting period, she said, “for me it was OK.” She and her boyfriend, she said, “needed some time to really think about it, to really make sure that this is what we have to do.”
“But I think for other women, they don’t have time to wait,” she said. “Or they don’t want to wait. They can’t wait for emotional reasons, for physical reasons. I don’t think waiting for 24 hours, we should have to do that. But in my case it worked out.”
The three clinics now operating in Louisiana perform about 8,000 abortions a year. Pittman declined to say how many her clinic, a for-profit business, performs. The clinic charges $50 for an initial consultation and $550 or more for the procedure.
Elizabeth B. Murrill, Louisiana’s solicitor general, said the state law requiring doctors to have hospital admitting privileges if they are going to perform abortions was a common-sense effort to protect women’s health.
“The privileging process is an evaluation of competency,” she said. “Women and girls would be afforded better health care. That’s the big picture.”
Only two of the five doctors who provide abortions in Louisiana have obtained admitting privileges, one in New Orleans and one in Shreveport. But the Shreveport doctor testified that he could not handle the clinic’s work alone. If the law went into effect, a trial judge concluded, there would be a single doctor in a single clinic, in New Orleans, available to provide abortions in Louisiana.
Murrill said the doctors should have tried harder to obtain admitting privileges. “Any failure to have privileges is attributable to their sitting on their hands,” she said of the doctors.
Pittman responded that hospitals have no incentives to provide admitting privilege. “The State Board of Medical Examiners is in charge of credentialing and licensing physicians,” she said. “They don’t need hospitals’ help.”
Abortion is a safe procedure, she said, and hospitalizations after abortions are rare.
In 2017, in a ruling striking down the law, Judge John W. deGravelles, of the U.S. District Court in Baton Rouge, wrote that the admitting-privileges requirement was a solution in search of a problem.
“In the last 23 years, Hope Clinic, which serves in excess of 3,000 patients per year, had only four patients who required transfer to a hospital for treatment,” deGravelles wrote. “In each instance, regardless of whether the physician had admitting privileges, the patient received appropriate care.”
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Pittman said doctors who perform abortions are often unable to obtain admitting privileges for economic and political reasons unrelated to their competence.
“There is no reason for a hospital to provide admitting privileges to any physician that’s not bringing something to the table,” she said. “Then you add to it public outcry. The whole abortion issue is such a hot-button topic for so many people, so why put themselves in the cross hairs as a hospital?”
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In 2016, when the Supreme Court struck down an essentially identical admitting-privileges law from Texas, Justice Stephen Breyer, writing for the majority, said there was no evidence that the requirement “would have helped even one woman obtain better treatment.”
The vote in the 2016 decision, Whole Woman’s Health v. Hellerstedt, was 5-3, with Justice Anthony Kennedy joining the court’s four-member liberal wing to form a majority. The case was decided by an eight-member court after the death of Justice Antonin Scalia that February.
Since then, Justice Neil M. Gorsuch was appointed to succeed Scalia and Justice Brett M. Kavanaugh to succeed Justice Kennedy, who retired in 2018. That change of personnel, shifting the court to the right, has abortion rights proponents worried.
A divided three-judge panel of the 5th U.S. Circuit Court of Appeals, in New Orleans, reversed deGravelles’ ruling in 2018 and upheld the Louisiana law.
“Unlike Texas, Louisiana presents some evidence of a minimal benefit,” Judge Jerry E. Smith wrote for the majority. In particular, he wrote, “the admitting-privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the well-being of women seeking abortion.”
In dissent, Judge Patrick E. Higginbotham wrote that the majority’s ruling was impossible to reconcile with the Supreme Court’s 2016 decision in the Texas case and with its landmark 1992 ruling in Planned Parenthood v. Casey, which barred states from placing an “undue burden” on the constitutional right to abortion.
“I fail to see,” Higginbotham wrote, “how a statute with no medical benefit that is likely to restrict access to abortion can be considered anything but ‘undue.’”
Abortion providers filed an emergency application asking the Supreme Court to stay the 5th Circuit’s ruling while they pursued an appeal. In February 2019, in an interim order, the Supreme Court temporarily blocked the law by a 5-4 vote, with Chief Justice John Roberts joining the court’s four liberals.
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The chief justice’s vote on the stay application is nothing like a guarantee that he will vote to uphold the law on the merits, but it gave supporters of abortion rights some hope that their cause was not doomed.
In a recent brief, state officials argued that the Casey decision applied to only the most aggressive restrictions. “Abortion regulations do not impose a substantial obstacle unless they make abortions nearly impossible to obtain,” the brief said.
In response, the abortion providers challenging the Louisiana law said it could not be reconciled with the Casey decision. “When a law serves no health or safety benefit,” they wrote, “any burden imposed by the law is by definition undue.”
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At the clinic, Pittman said she was sometimes on the verge of despair. After the election of Trump and his appointment of two justices, she said, opponents of abortion have a new energy and resolve.
“Had you told me in early 2016 that we would be sitting here now, I would have laughed,” she said. “But so much has happened. I don’t recognize the world I’m living in.”
The phones at the clinic keep ringing, she said, and many of the callers have the same question: “Is abortion still legal in Louisiana?”
This article originally appeared in The New York Times .