SCOTUS asked to void Louisiana abortion law as Indiana case lingers

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A Louisiana abortion clinic is asking the United States Supreme Court to strike down regulations that could leave the state with just one clinic.

A divided high court had previously agreed to block the law pending a full review of the case. The Louisiana law requires abortion providers to have admitting privileges at nearby hospitals.

An appeal filed with the court Wednesday says the justices should now take the next step and declare the law an unconstitutional burden on the rights of women seeking an abortion. The Louisiana provision is similar to a Texas law the court struck down in 2016.

If the justices agree to hear the Louisiana case, as seems likely, it could lead to a decision on the high-profile abortion issue in spring 2020, in the midst of the presidential election campaign.

Also in play is Indiana’s petition for Kristina Box et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al., 18-483, which was been distributed Thursday for its 11th conference. The state is asking the Supreme Court to uphold its laws requiring fetal remains be either buried or cremated and prohibiting an abortion on the basis of the fetus’ gender, race or genetic abnormality.

Both the U.S. District Court for the Southern District of Indiana and the 7th Circuit Court of Appeals overturned the law. In its response brief, Indiana argued the U.S. Supreme Court can uphold the ban on terminating a pregnancy because of the characteristics of the fetus without revisiting the precedents set in Roe or Casey

The state asserted that those two cases protect abortion only in the instance of a woman choosing whether to have the child. However, the state continued, “the Court has not decided whether Roe and Casey protect a right to decide which child to bear in any other of its prior abortion decisions”.

The case from Louisiana presents a swirling mix of the changed court’s views on abortion rights and its respect for earlier high court decisions.

Louisiana’s law mirrors a Texas law that justices in 2016 said provided “few, if any, health benefits for women.”

But the composition of the court has changed since then. President Donald Trump has put two justices, Neil Gorsuch and Brett Kavanaugh, on the court. Kavanaugh replaced Justice Anthony Kennedy, who voted to strike down the Texas law. Trump had pledged during the campaign to appoint “pro-life” justices, and abortion opponents are hoping the more conservative bench will be more open to upholding abortion restrictions.

Louisiana abortion providers and a district judge who initially heard the case said one or maybe two of the state’s three abortion clinics would have to close under the new law. There would be at most two doctors who could meet its requirements, they said.

But the appeals court in New Orleans rejected those claims, doubting that any clinics would have to close and saying the doctors had not tried hard enough to establish relationships with local hospitals.

In January, the full appeals court voted 9-6 not to get involved in the case, setting up the Supreme Court appeal.

In February, the justices split 5-4 to keep the law on hold. Chief Justice John Roberts, a dissenter in the 2016 case from Texas, joined with the court’s four liberal justices to temporarily block the Louisiana measure.

For Roberts, it was a rare vote against an abortion restriction in more than 13 years as chief justice, perhaps a reflection of his new role since Kennedy’s retirement as the court’s swing justice and his concern about the court being perceived as a partisan institution.

Gorsuch and Kavanaugh, along with Justices Samuel Alito and Clarence Thomas, would have allowed Louisiana to begin enforcing the clinic regulations.

The Hope Medical Group clinic in Shreveport, Louisiana, and two doctors whose identities are not revealed said in their appeal that the justices should strike down the law without even holding arguments because the decision so clearly conflicts with the Texas ruling from 2016.

But the Supreme Court typically won’t consider a summary reversal of a lower court ruling unless at least six justices are on board. A decision about whether to hear the case should come before the court completes its current term in June. Arguments probably wouldn’t take place before late in the fall.

The case is June Medical Services v. Gee.

This month, the Indiana General Assembly passed two other abortion bills that could bring more court challenges. House Enrolled Act 1211, authored by Rep. Peggy Mayfield, R-Martinsville, bans dilation and evacuation abortions during the second trimester. Senate Enrolled Act 201, authored by Liz Brown, R-Fort Wayne, allows nurses, physicians assistants and pharmacists to opt out of participating in abortion procedures on ethical, moral or religious grounds. Both measures passed both chambers, but neither has yet been signed by Gov. Eric Holcomb.

Indiana Lawyer senior reporter Marilyn Odendahl contributed to this report.

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