White House tells Supremes their abortion precedent may need to be overturned
Administration argues for state requirement for abortionists
By WND StaffPublished January 4, 2020 at 12:54pm
The U.S. government is asking the Supreme Court to overturn a ruling it make a few years ago to avoid the "atrocities at abortion clinics like those run by Kermit Gosnell."
A friend-of-the-court brief supports Louisiana's law requiring abortionists to have admitting privileges at nearby hospitals in case a woman needs emergency treatment.
A district judge ruled that the state couldn't impose such a requirement, but the appeals court said it was constitutional.
The brief was filed in the case June Medical Services vs. Rebekah Gee, of the Louisiana Department of Health and Hospitals.
In 2016, the Supreme Court struck a similar Texas law in the case Whole Woman's Health v. Hellerstedt.
The brief explains that the justices don't need to decide the case on its merits, because the plaintiffs don't have a right to sue.
But if they do allow the case to go forward, the Supreme Court should affirm the 5th Circuit opinion that allowed enforcement of the admitting privileges requirement, the brief contends.
That's because even though the Texas law was struck down in 2016, a previous case, Planned Parenthood vs. Casey, established that the real issue is whether such requirements create a "substantial obstacle" for women seeking abortion.
The brief explains the expected delay for a woman seeking the procedure would be only 54 minutes if the requirement stands, a nominal impact that certainly cannot be used as legal justification for rejecting it, the brief argues.
After all, the justices in the Texas law dispute did not abandon that central holding from Casey.
If the justices determine there is a conflict with the Texas ruling, the Texas decision simply should be overruled, the brief asserts.
An analysis at Scotusblog said the decision will reveal some of the impact of President Trump's judicial appointees.
The Texas case was decided by a 5-3 vote in favor of abortionists.
But the court has changed since then, the blog noted, with Justice Brett Kavanaugh replacing Anthony Kennedy, who joined his more liberal colleagues in voting to invalidate the Texas law.
Justice Neil Gorsuch filled the empty seat created by the death of Justice Antonin Scalia.
Last year it was Chief Justice John Roberts, a dissenter in 2016, who provided the fifth vote to temporarily block Louisiana from enforcing the law, Scotusblog said.
The government raised the specter of Gosnell in its brief.
He was an abortionist in Philadelphia who was convicted and sent to prison for the murder of three infants who were born alive during abortions.
He then "severed their spinal cords" to make sure they died.
Reaching the opposite conclusion would be dangerous, the government contended.
That's because any abortionist, facing any regulation, could simply claim it's too strict and refuse to comply.
"Abortion providers would effectively veto disfavored legislation by asserting that compliance is too difficult or objectionable and threatening to leave practice if forced to follow the law," the government argument said.
"That risk is particularly pronounced in pre-enforcement litigation, when providers are not faced with the real-world choice between doing what it takes to comply and abandoning their practices, and instead have every incentive to overstate the burden of compliance and the likelihood that they will leave practice if the law takes effect."
Some of the state's abortionists already had the required admitting privileges, and their work would be unaffected, the brief said.
The lower court said any reduction in the availability of abortionists because of such a basic requirement "would be attributable to choices by individual providers rather than to the [law]."
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