Friday, March 6, 2020

Did Louisiana Enact a Bogus Health Law as a Pretext for Banning Abortion?

By Damon Root - March 06, 2020 at 11:30AM

Another abortion case is now in the hands of the U.S. Supreme Court. At issue in this week's oral arguments in June Medical Services v. Russo is the constitutionality of a Louisiana law that requires physicians who perform abortions to have admitting privileges at local hospitals. According to the state, the law serves a valid health and safety purpose and should be upheld as a legitimate exercise of government power. According to the legal challengers, the law is a bogus regulation whose only purpose is to harass lawful abortion providers and drive them out of business.

If all of that sounds familiar, it's because the Supreme Court decided a nearly identical case just four years ago. In Whole Woman's Health v. Hellerstedt (2016), the Court struck down a Texas law requiring physicians who perform abortions to have admitting privileges at local hospitals on the grounds that the law conferred no "medical benefits sufficient to justify the burdens upon [abortion] access" that it imposed.

In most cases in which the constitutionality of a purported health or safety law is at issue, the Supreme Court employs a legal standard known as the rational-basis test. Under this highly deferential approach, the Court effectively tips the scales in favor of the government. "The burden is on the one attacking the legislative arrangement," the Court has said of the rational-basis test, "to negative every conceivable basis which might conceivably support it." In other words, the legal challengers must defeat not only the government's stated rationale for its regulation, but they must also defeat any conceivable rationale that the government (or even the presiding judge) might later invent. To say the least, the government usually prevails in rational-basis cases.

Abortion regulations—even though they also purportedly involve health and safety—are reviewed under a less forgiving legal standard. Here the Supreme Court employs something known as the undue burden test. It originated in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), in which the Court said that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right."

One of the central questions that the Court grappled with this week in June Medical Services, in other words, was whether the Louisiana regulation, just like the Texas regulation before it, amounts to an undue burden and should be overruled.

These cases are also notable for the ideological contortions that they sometimes inspire. For example, as I wrote about the legal wrangling over Whole Woman's Health, "the same left-wing legal pundits who normally say that the Court has no business striking down ostensible health and safety laws suddenly find themselves in the unusual position of favoring aggressive judicial action against Texas' 'burdensome and expensive restrictions' and 'sham health laws.' By the same token, conservative legal activists have taken up the mantle of government regulation and are now accusing the other side of seeking 'to use the Due Process Clause as a deregulatory tool.'"


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