Abortion

The issue the Supreme Court will decide in June Medical Services LLC v. Gee is whether Louisiana’s law requiring physicians performing abortions to have admitting privileges at a local hospital conflicts with Supreme Court precedent.

If the legal issue in this case sounds familiar that is because it is. In 2016 in a 5-4 decision in Whole Woman’s Health v. Hellerstedt the Supreme Court struck down Texas’s admitting privileges law. In June Medical Services LLC v. Gee the Fifth Circuit upheld Louisiana’s law noting that the “facts in the instant case are remarkably different” from the facts in the Texas case.

As some state legislatures pass laws contradicting Roe v. Wade in the hope the Supreme Court will overturn the 1973 decision, all eyes are on anything the Supreme Court has to say about abortion.  

In a per curiam (unauthored) opinion in a case decided without oral argument, Box v. Planned Parenthood, the Supreme Court held that Indiana’s law disallowing fetal remains to be incinerated along with surgical byproducts is constitutional. The Seventh Circuit had invalidated this provision.

In a 5-4 decision in National Institute of Family and Life Advocates v. Becerra, the Supreme Court ruled that a California law requiring licensed pregnancy clinics to disclose they don’t offer abortions and unlicensed pregnancy clinics to disclose the fact they are unlicensed likely violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Court not to apply the highest level of scrutiny (strict scrutiny) to commercial speech or to every disclosure requirement adopted by states and local governments.

California law requires that “licensed covered facilities” that provide family planning or pregnancy-related services must disseminate a notice stating that publicly-funded family planning services, including contraception and abortion, are available. It also requires “unlicensed covered facilities” to disseminate a notice they are unlicensed. The author of the law noted there are nearly 200 licensed and unlicensed crisis pregnancy centers in California. These centers “aim to discourage and prevent women from seeking abortions.”

The National Institute of Family and Life Advocates (NIFLA) operates licensed and unlicensed covered facilities that don’t offer abortions. It argues these requirements violate its First Amendment right to free speech.

In Whole Women’s Health v. Hellerstedt the Supreme Court held 5-3 that Texas’s admitting privileges and ambulatory surgical center requirements create an unconstitutional undue burden on women seeking abortions.

The admitting privileges law requires abortion doctors to have admitting privileges at a nearby hospital. It can be difficult for abortion doctors to obtain admitting privileges because “hospitals often condition admitting privileges on...

Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states.

The Court has already decided two big cases and has four more left to go. Only one of the six big cases (involving the Affordable Care Act birth control mandate) will have no direct impact on the states.

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