Indiana asks SCOTUS to uphold Louisiana admitting-privileges abortion law

Indiana Attorney General Curtis Hill has requested that the United States Supreme Court uphold a Louisiana law requiring all ambulatory surgical centers, including abortion clinics, to hold admitting privileges at nearby hospitals.

Hill, a Republican, and Arkansas Attorney General Leslie Rutledge led the 20-state amicus brief filed Thursday in June Medical Services, LLC, et al. v. Dr. Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals, 18-1323, 18-1460.

“This commonsense measure to protect women’s health is entirely compatible with the Constitution,” Hill said in a Friday statement announcing the amicus brief. “There is no good reason to exempt abortion clinics from the same health and safety standards applied to other medical facilities.”

A Louisiana abortion clinic asked the Supreme Court in early 2019 to strike down the admitting-privileges regulations, contending the law was an unconstitutional burden on the rights of women seeking an abortion.

In February 2019, U.S. Supreme Court justices split 5-4 to temporarily block the Louisiana regulations, with Chief Justice John Roberts joining the court’s four liberal justices in voting to temporarily block the measure.

The amicus brief asserts that under the court’s jus tertii precedents, abortion practitioners cannot challenge health and safety regulations on behalf of pregnant women.

The states also contend the Supreme Court should clarify the standard laid out in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), by affirming that an abortion regulation imposes an undue burden only if its burdens substantially outweigh its benefits, and that the large-fraction test requires lower courts to find an undue burden on practically all affected women.

Even if correctly applied, the brief asserts, Hellerstedt’s fact-intensive test is ill-suited for pre-enforcement challenges. The states request that the Supreme Court remand with instructions to dismiss the complaint for lack of standing or, alternatively, affirm the 5th Circuit Court of Appeals judgment in Hellerstedt.

“We are asking the Supreme Court to rule that abortion practitioners cannot assert the rights of hypothetical abortion patients in legal proceedings,” Hill said. “In the interest of justice and transparency, these businesses should be required to stand on their own substantive merits or lack thereof.”

Hill has also asked the high court for “urgently needed clarity” regarding Hellerstedt in the cases of Kristina Box, Commissioner, Indiana State Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., for which Hill’s office filed a certiorari petition last week, and Box v. Planned Parenthood of Indiana & Kentucky, Inc., 18-1019 (U.S.), which has been distributed for conference multiple times.

In the cert petition filed last week, Hill’s office said the pending decision in June Medical Services could resolve questions regarding pre-enforcement injunctions and third-party standing.

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