By Adrienne Ghorashi
UPDATE: Late Thursday, February 7, the Supreme Court granted Plaintiff’s stay application, meaning Louisiana’s TRAP law may not be enforced while the challengers file an appeal. The Supreme Court will then decide whether to hear the case or deny the petition, letting the Fifth Circuit’s ruling stand.
Justice Roberts sided with the Court’s liberal justices to grant the stay, while Justices Alito, Thomas, Gorsuch, and Kavanaugh would deny it. Kavanaugh also wrote a dissent, saying he would want to see the law go into effect before deciding whether the stay was necessary.
Although this is only a temporary win for the women of Louisiana, these actions could be a sign that a majority of justices have their doubts as to the law’s constitutionality in light of Whole Woman’s Health.
When the Supreme Court of the United States issued the Whole Woman’s Health v. Hellerstedt ruling in 2016, which struck down Texas’ TRAP (Targeted Regulation of Abortion Providers) law, reproductive justice advocates were cautiously optimistic. Although it was a major victory handed down from the highest court, most advocates knew the real battles were potentially still to come in the lower courts and state legislatures. Now, less than three years later, the weight of that momentous decision is hanging precariously in the air.
In 2014, Louisiana passed a TRAP law, similar to the Texas TRAP law ultimately found to be unconstitutional. The Louisiana law, like the Texas law requires physicians performing abortions to obtain admitting privileges at a hospital within 30 miles of the facility. Abortion providers and advocates contend that the requirement is unnecessary for providing safe continuing medical care, while having the effect of shuttering clinics that cannot comply with this requirement. The Supreme Court agreed that the Texas admitting privileges requirement constituted an “undue burden” on the right to seek an abortion for those same reasons.
When suit was filed against the Louisiana law, the district court found that despite good-faith efforts put forth by physicians in the state, they were unable to comply with the admitting privileges requirement. According to the case, only one of the 13 formal applications for admitting privileges submitted by 5 physicians was granted by a nearby hospital. The rest of the applications were either denied or left “pending” for an indefinite amount of time, most for more than a year since being filed.
The impact of Louisiana’s TRAP law requirements would mean that the state could be left with only one clinic with a single abortion provider for the 10,000 women per year who seek abortions in the state, according to the case. The district court found the law would “result in delays in care, causing a higher risk of complications, as well as a likely increase in self-performed, unlicensed and unsafe abortions,” and blocked the requirement from going into effect.
Despite the well-documented difficulties in trying to obtain hospital admitting privileges and the undue burden this would cause for women, the Fifth Circuit Court of Appeals reversed the district court’s decision and upheld the requirement last September. Now, the plaintiffs in the case have filed an emergency motion asking the Supreme Court to block the law from going into effect while it is being further appealed.
Justice Alito has asked the state to respond to Plaintiffs’ emergency motion by this Thursday, February 7, at which point he will likely refer the matter to the full court.
While advocates claim the Louisiana law fits squarely within the purview of the precedent set by the Supreme Court’s decision in Whole Woman’s Health, the problem is that the balance of the bench has shifted drastically to the right. Justice Kennedy, now retired, sided with liberal-leaning justices in order to strike down Texas’ TRAP law. With Trump-appointed Justices Gorsuch and Kavanaugh now in play, proponents of abortion rights fear the court will seize this opportunity to chip away at the undue burden standard, and the protections cemented in Roe v. Wade altogether.
Anyone who cares about the future of reproductive health in this country should be watching the Supreme Court’s actions regarding the Louisiana TRAP law very closely. With at least 8 other states that have had their TRAP laws enjoined or invalidated by the courts, according to data published by the Policy Surveillance Program, a decision upholding the admitting privileges requirement could cripple the significance of the victory in Whole Woman’s Health.
Most importantly, such a blow to the undue burden standard could further invite state legislatures already hostile to abortion rights to regulate “legal” abortion nearly out of existence and leave thousands of women without access to safe and necessary medical care. By refusing to strike down Louisiana’s law, the Court would directly be contradicting its own precedent, as well as compromising the health and safety of women.
For more information regarding state abortion regulations, including TRAP laws, please visit the Abortion Law Project. The Abortion Law Project was created through a collaboration between the Policy Surveillance Program at Temple University’s Center for Public Health Law Research, Guttmacher Institute, Resources for Abortion Delivery (RAD), American Civil Liberties Union, Center for Reproductive Rights, National Abortion Federation, and Planned Parenthood Federation of America.
Adrienne R. Ghorashi is a Program Manager at the Policy Surveillance Program at the Temple University Center for Public Health Law Research.