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December 02, 2019

ABA asks U.S. Supreme Court to reject Fifth Circuit’s decision in Louisiana abortion case

CHICAGO, Dec. 2, 2019 — The American Bar Association filed an amicus brief today with the U.S. Supreme Court, urging the justices to reverse a federal appeals court ruling that upheld a Louisiana law that requires physicians who perform abortions to have admitting privileges at a local hospital.

The ABA brief noted that the decision by the U.S. Court of Appeals for the Fifth Circuit conflicts with the Supreme Court’s decision in 2016 in Whole Woman’s Health v. Hellerstedt. In that case, by a 5-3 vote the high court said that a similar Texas law imposed an undue burden on women seeking a legal abortion and thus is unconstitutional.

The ABA brief said the Louisiana law is absent any medical benefit, which alone might be sufficient “to invalidate the statute.” In addition, it noted that the federal district court judge in the case developed an extensive record at trial before striking down the law, and the brief argued the Fifth Circuit “lost sight of its role as reviewing court in re-considering the facts at issue here.”

In Whole Woman’s Health, the brief pointed out, the Supreme Court previously “concluded that the admitting-privileges requirement in the Texas law was not medically necessary and did not advance the asserted goal of protecting women’s health.”

Neither the Louisiana law nor the lower court record differs enough to reach an outcome distinct from Whole Woman’s Health, the brief said. If the Fifth Circuit’s decision stood, the brief said, it would present a “stark, and at least a facially anomalous, inconsistency between what is an acceptable law concerning abortion services in Louisiana, as opposed to Texas and the rest of the country.”

“Such inconsistency suggests the appearance of arbitrariness that stare decisis seeks to avoid,” the ABA brief said, citing the Latin term that establishes the legal principle in the United States to stand by prior Supreme Court decisions.

The amicus brief in June Medical Services LLC. v. Gee can be found here. The ABA was represented on the amicus brief by the law firm of Crowell & Moring LLP. The Supreme Court has set March 4, 2020, for oral arguments in the case.

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