The Supreme Court Taking Up Louisiana’s Abortion Case ‘Flies in the Face of Precedent’

The U.S. Supreme Court on Friday agreed to hear a case against a Louisiana law that requires abortion providers to have admitting privileges at a nearby hospital—nearly identical to requirements under Texas’ House Bill 2 that the Supreme Court struck down three years ago as constituting an undue burden on abortion access. This is the first abortion case the Court has taken up since Brett Kavanaugh cemented the conservative majority that anti-abortion activists hope will eventually overturn Roe v. Wade.

The 2014 Louisiana law—which would bring the number of abortion providers in the state down to one—was permanently blocked in 2017 by a federal judge who cited the Texas case, but a 2-1 decision in 2018 from the Fifth Circuit Court of Appeals overturned the lower court’s ruling. Louisiana’s abortion providers appealed the case, June Medical Services v. Gee, to the Supreme Court, which will hear it this term, with a decision likely next summer.

Despite there being clear and recent Supreme Court precedent against a virtually identical law, the appeals judges argued that the impact of such restrictions in Louisiana would be less burdensome than in Texas, and therefore constitutional. Abortion-rights advocates argue that admitting privileges are unnecessary because the procedure is safe and rarely requires hospitalization. Making this a requirement is a backhanded way to limit abortion access, they say, because hospitals often decline to offer them due to opposition to abortion or because the doctors are unlikely to actually admit patients to hospitals. Opponents of the law are glad the Supreme Court intervened rather than let the Fifth Circuit’s ruling remain. But, they argue, the justices could have just reversed the court’s ruling, blocking the law. By taking up the case, conservative judges could further chip away at abortion access across the country.

The news is a bit of unwelcome déjà vu for Amy Hagstrom Miller, CEO of Whole Woman’s Health, a group of abortion clinics in Texas and several other states. In 2016, she was celebrating her victory as lead plaintiff in the Whole Woman’s Health v. Hellerstedt case out of Texas, and has challenged many other state anti-abortion laws since. The Observer spoke with Hagstrom Miller on Friday.

Texas Observer: So, how are you doing? 

Amy Hagstrom Miller: It’s hard to say I can be surprised, but I guess I’m just sort of stunned that [abortion opponents have] gotten the Court to take it up. It’s basically the Fifth Circuit trying to relitigate Whole Woman’s Health in many ways. It really flies in the face of precedent.

I look at Louisiana, where I know many providers, and that outcome is proportionally very similar to what we experienced in Texas. Yes, the population is less and the state is smaller, but all that is sort of secondary. The point is: What are we doing allowing these kinds of regulations to be put in place when we’ve proven in court, handily, that they’re not about health and safety and that the effect they’ve had is damaging to women’s health, damaging to families? The Supreme Court is very different than it was [in 2016] when we were in front of it. Yet the Whole Woman’s Health victory still stands, and it is precedent, and it was a very strong decision.

You said you’re stunned but not surprised—

One of the expressions that we often say in my family and at Whole Woman’s Health is, ‘You can be angry, but you can’t be surprised.’ I say that about Texas; I’m feeling similarly [about this decision]. Louisiana basically looked at Texas and said, ‘Oh, hey, look, that worked. We want to try that over here.’ By their definition it was successful in shutting down a bunch of clinics. They’re just sort of ignoring all the stories of people who were affected in Texas, and all the evidence we put forward really defeating the argument that [the state] had health or safety interests in mind. It seems like a waste of resources, and of people’s lives, to have to relitigate something that’s already been decided.

So regardless of the court decision, the impact of Texas’ law on abortion access has been long-lasting. Tell me about this from your perspective, having had clinics close because of HB 2, then eventually re-opening your Austin clinic.

We can’t just pretend it’s a legal game; it’s people’s lives that we’re talking about, and access to really fundamental health care. So yeah, we won a very strong decision at the Supreme Court in Whole Woman’s Health—and it took three years. And the state has not recovered. We won on paper. [Texas] had 44 clinics and there was all this access; we won the strongest [ruling] on reproductive rights in a generation, that’s what everybody always tells me. And now what? We have [about] 20 clinics in Texas, and we lost almost all the clinics in rural communities. We lost Midland, Odessa, College Station, Kileen. So the state is still very much affected by the damage caused by HB 2. You have three years where the fabric of care that stretched across the state just got decimated. And you don’t just recover from that when you win a lawsuit in court.

Of course, I’d be the last person to discount the work we did, but what does that mean for people on the ground? They need access to safe abortion care. None of [these restrictions] do anything to prevent unplanned pregnancy. Shuttering clinics is not improving health care. In Texas, I think only the Whole Woman’s Health clinic in Austin, the Planned Parenthood in Waco, and one other clinic in Dallas have reopened since we won three years ago. So the effects are long-lasting. And they know that, I would argue. That’s part of the strategy.

After the Whole Woman’s Health ruling you said it was time to use that decision to challenge other anti-abortion laws, before the Supreme Court makeup changed under Trump. You filed an omnibus challenge to dozens of Texas anti-abortion laws last year. Then less than two weeks later, Kennedy announced his retirement. Has your strategy changed?  

The Whole Woman’s Health win at the Supreme Court brought relief to at least 11 states beyond Texas’ borders pretty immediately. It knocked down other litigation that was in process. Then I leveraged that Whole Woman’s Health standard to repeal laws that had been enforced prior but no longer held up to the standard. So my organizations are plaintiffs in three comprehensive repeal lawsuits: one in Virginia, one in Indiana, and we’re waiting for trial for one in Texas. All three attempt to repeal all of these kinds of restrictions that aren’t based in health and safety: waiting periods, forced ultrasounds, state mandated information scripts, etc.

I think it’s super important to bring those [challenges]. The posturing around the Louisiana case doesn’t change the outcome of Whole Woman’s Health. We still have one of the strongest precedents we’ve had in my lifetime. We have Supreme Court justices and a chief justice who talk a lot about legal precedent; Whole Woman’s Health is legal precedent.

How are you feeling about the Louisiana case? 

I really don’t know. I am—anxious might be the right word? Primarily because of [Supreme Court justices Neil] Gorsuch and Kavanaugh. I think none of us know what to expect. I think people don’t realize not only how much damage [President Donald] Trump has done in appointing judges, but also how long lasting it will be. Because I spend a lot of time in these courts, I see it already, at the circuit level. The makeup of courts is really changing, so I feel anxious about what might happen at the Supreme Court level for sure. And not just about this case, but a lot of them.

What are the stakes in this case?

It [likely] won’t roll back anything that we won in Texas, unless there’s a new challenge or new law passed. That will take some time, it’s hard to predict. But if the state of Louisiana wins, I think we’ll see Texas clinics receiving patients from Louisiana; I even saw that years ago when I had a clinic in Beaumont that had to close because of HB 2. I saw a lot of people from Louisiana coming over the border because they didn’t have access to the care they needed in their communities.

We’ve all been on pins and needles waiting to see what [abortion] case the Supreme Court was going to pick up. There was concern about the Indiana embryonic and fetal burial case or the D&E [dilation and evacuation] abortion ban cases, [including] one where I’m lead plaintiff in Texas. I think the opposition had a strategy of bringing one of the abortion bans up to the Supreme Court, whether in Georgia or Ohio or Missouri. There are many cases that we’ve been watching, and we all know that one of them, if not more than that, will be taken up. It was just a matter of which would be first.

Any update of the fetal remains and the D&E ban cases in Texas?

We’re waiting to see what the three-judge panels have to say; both are sitting in the Fifth Circuit, which is not that friendly a place for us. Here’s the thing: I have an injunction blocking both those laws from going into effect, so to me time is just fine. It could take years if they want it to. And from where we sit as providers in Texas, that would be fine.

This interview has been edited for length and clarity. 

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