DOJ attorney can't explain to Supreme Court how abortion restriction helps anyone

On Wednesday, the United States Supreme Court heard arguments in June Medical Services LLC v. Russo, over whether Louisiana can require physicians who perform abortions to have admitting privileges at hospitals. 

Just five years ago, the Supreme Court decided a nearly identical case, Whole Woman’s Health v. Hellerstedt, and found that admitting privileges laws were unconstitutional because they placed a “substantial obstacle” in the way of someone seeking an abortion. 

So what changed in the last five years? Nothing but the composition of the Supreme Court. Donald Trump has been able to add two staunchly anti-abortion members, Justices Neil Gorsuch and Brett Kavanaugh, to the court. The June Medical Services case represented an opportunity for a solidly conservative majority to undermine abortion rights. 

A physician admitting privileges requirement has long been proven to be unnecessary and without valid medical justification, but they remain popular among abortion opponents as a way to restrict access to the procedure. 

The laws generally require an abortion provider, most of whom perform services in standalone clinics, to have privileges to admit patients to a local hospital where they can personally provide services. Louisiana’s law prohibits physicians from performing abortions unless they have admitting privileges at a hospital within 30 miles of their clinic. 

In the June Medical Services case, Louisiana’s attorney argued at the court that abortion providers in the state showed “abundant evidence of life-threatening health and safety violations” — but that’s demonstrably untrue. 

As Justice Ruth Bader Ginsburg pointed out correctly during arguments Wednesday, as a general rule, abortion is among the safest medical procedures there is and is “far safer than childbirth.” 

Ginsburg also noted that in Louisiana, a hospital transfer — where a patient receiving an abortion at a clinic has reason to be admitted to a hospital — was required “far less than once a year or less than one per several thousand patients.” 

Justice Sonia Sotomayor expanded on this, noting that Hope Clinic, one of the plaintiffs in the case, had served roughly 3,000 patients per year for 23 years, or roughly 70,000 people. 

In all that time, Hope Clinic transferred only four patients to a hospital.  

“I don’t know of a medical procedure where it’s lower than that of any kind,” Sotomayor said. 

Far from being an abundance of “life-threatening health and safety violations,” the data shows that Louisiana abortion clinics are instead incredibly safe.

A look at how admitting privileges work in that state shows how the admitting privileges law was designed not to increase safety but to prevent abortion providers from doing their jobs. 

As Ginsburg noted during oral argument, at most hospitals in the state, you have to admit a certain number of patients to get those privileges. 

Hospitals won’t credential doctors who aren’t going to see patients at the facility, but given how rare it is for an abortion provider to ever need to see patients at a hospital, “if they’re not also doing obstetrics and gynecology, they will never qualify,” Ginsburg said.

The Guttmacher Institute, an organization that conducts research on abortion laws in the United States, points out that requiring admitting privileges also “effectively hand[s] hospitals veto power over whether an abortion provider can continue offering care in the area.” Catholic hospitals, for example, may refuse to credential any abortion provider. 

Right now, Louisiana has only five doctors who perform abortions at only three licensed clinics, even though 10,000 women in the state get abortions each year. Were the court to uphold the admitting privileges law, Louisiana would be left with only one clinic. 

Even without the admitting privileges law going into effect, Louisiana already has enacted more abortion restrictions than any other state. The state has a 24-hour waiting period, so everyone who wants an abortion must make two round trips to a clinic or make arrangements to stay near the clinic for the duration. 

Louisiana also forces doctors to include abortion “counseling” materials that are medically misleading. 

The state bars the use of telemedicine for medication abortions, which means people who live far from the limited amount of clinics in the state must travel long distances, even for a medication abortion in the early stages of pregnancy. 

And all abortion after 22 weeks is entirely banned. 

This collection of laws already can result in delaying abortion until later and later in pregnancy. In states with waiting periods, abortion is delayed several days past the actual waiting period. Imposing admitting privileges is designed to reduce the availability of clinics in a state, reducing access to “the safest and most appropriate” care.”

At oral argument, both Louisiana and the Department of Justice, which filed an amicus brief in the case, seemed unable to explain how Louisiana’s law is different from the law struck down in the Whole Women’s Health case or how the law would benefit people who need abortions. 

The DOJ’s attorney, Jeffrey Wall, admitted they had no idea how often the alleged medical emergencies related to abortion would arise and he was “prepared to concede” Justice Elena Kagan’s point that “it may not happen all that often.” 

But requiring admitting privileges would result in some people needing to make a 320-mile trip to get to the lone clinic that would remain. 

Clinic closures delay access to abortion care. Combined with Louisiana’s ban on abortions after 22 weeks, dropping to one clinic in the state virtually guarantees that some people will not be able to get access to a procedure when they want one — if they are able to obtain one at all. 

If Louisiana prevails at the court, abortion laws will be utterly upended and states will be free to pass exactly the type of law the Supreme Court ruled against five years ago, further delaying and restricting access across the country. 

Published with permission of The American Independent Foundation.