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After shift to the right under Trump, Supreme Court to hear major abortion case

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Image: Charla Roshto prepares the recovery room at the Hope Medical Group f
Charla Roshto prepares the recovery room at the Hope Medical Group for Women in Shreveport, La., on Feb. 13, 2020.   -   Copyright  Liliana Engelbrecht Reuters
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Women from as far as Oklahoma and Nebraska travel to a small abortion clinic tucked away in the northwest corner of Louisiana, known as Hope Medical Group for Women.

In a state that opposes abortion rights, the clinic's administrator, Kathaleen Pittman, said some of the women often have to dodge protesters and make multiple visits, due to a state-mandated 24-hour waiting period, both of which make accessing abortion services at the clinic more difficult.

Now, the clinic faces a legal hurdle.

"We are nervous about this," Pittman told NBC News. "Had anyone told me we would be here now, I would have thought they were nuts."

Her clinic is challenging a 2014 Louisiana law, known as Act 620, that requires doctors performing abortions to get admitting privileges at a hospital within 30 miles of the clinic. Admitting privileges give an outpatient doctor the right to admit patients to a hospital and then treat them if an emergency occurs.

According to the Guttmacher Institute, since abortion was legalized in 1973, Louisiana has enacted 89 abortion restrictions, more than any state in the nation.

The case, June Medical Services v. Russo, will be heard by the U.S. Supreme Court on Wednesday and has the ability to shape abortion access in Louisiana and perhaps beyond.

Old law, new law

In 2016, the Supreme Court struck down a similar Texas law in the Whole Woman's Health v. Hellerstedt case. The law required doctors performing abortions to have admitting privileges at nearby hospitals and clinics providing abortion services to have the same building standards as ambulatory surgical centers.

In the majority opinion, Justice Stephen Breyer wrote that neither of the provisions provided medical benefits and placed a substantial obstacle in the path of women seeking an abortion, constituting an undue burden.

T.J. Tu, senior counsel for litigation at the Center for Reproductive Rights and co-lead counsel on the case, said Louisiana's admitting privileges law is virtually identical to the Texas law. He called the case "critically important."

However, the state of Louisiana isn't backing down.

"We have argued all along and explained all along that this is bipartisan legislation, led by women and that it was necessary," said Louisiana Solicitor General Liz Murrill, who is presenting the oral arguments before the Supreme Court.

A shift in the court

While the Supreme Court may have struck down the Texas law, there is a major difference in the court today that could affect the outcome of the Louisiana case. Justice Anthony Kennedy retired, and the Trump administration ushered in a conservative majority on the bench with the confirmation of Justices Neil Gorsuch and Brett Kavanaugh.

When the court temporarily blocked the Louisiana abortion law from going into effect in February 2019, it was the first major test on the court since Justice Anthony Kennedy retired. The vote was 5-4, with Chief Justice John Roberts siding with the four liberal justices.

"The case is about the court's willingness to gut precedent, period," said Ilyse Hogue, president of NARAL Pro-Choice America. "(The Supreme Court) heard a case identical to this one in 2016 and the court decided 5-4 that these states are passing laws to close clinics, at the expense of people's health, and that's unconstitutional. The single thing that has changed since then is the makeup of the court — nothing else."

Admitting privileges

For the three remaining clinics in Louisiana, only two doctors providing abortion services have admitting privileges: one at Hope Medical Group for Women and the other at Women's Health Care Center, according to court documents.

Hope Medical Group for Women has two doctors performing abortion services, but only one has admitting privileges with a nearby hospital. That doctor is a full-time OB-GYN, but only provides abortions part-time at the clinic. Its full-time doctor does not have admitting privileges, despite trying to get them for over a year and a half, said Tu.

Tu said that requirements for admitting privileges may look good on paper, but for outpatient abortion providers it's a classic Catch-22.

"Abortion providers do not need admitting privileges to provide safe and effective abortion care, and they cannot get them," he added. "The reason they don't need them is because abortion is one of the safest medical procedures in the United States."

When abortion providers do apply for admitting privileges they can run into many challenges. Sometimes hospitals require providers to admit a certain number of patients a year, a requirement that abortion providers are often unable to meet.

Andrew Beck, senior staff attorney at the ACLU Reproductive Freedom Project, said that's because providers rarely have to admit patients because abortion is so safe.

Hope Medical Group for Women treats 3,000 patients a year and has only had to transfer four patients to a hospital for treatment in the last 23 years.

"The bill is just another nail in the coffin of trying to close down clinics," said Toni Van Pelt, president of the National Organization for Women. "We know that the bill is a political plow and admitting privileges are unnecessary for doctors who perform abortions."

Another hurdle, Beck adds, is that some hospitals want to avoid controversy, and don't want to be seen as enabling abortion, especially in communities where it's unpopular.

Louisiana state Sen. Katrina Jackson, a Democrat, strongly supports the law and its requirement for admitting privileges.

"We believe that the women deserve the same care as others in the state of Louisiana," she said, "and that the physician is competent and has a continuity of care, in case of emergency."

Despite Jackson and others emphasizing the safety requirements of Louisiana's abortion law, several non-partisan medical groups disagree.

The American College of Obstetricians and Gynecologists, the American Medical Association and others filed afriend of the court brief with the Supreme Court, arguing the law does not benefit the health and safety of women.

Instead of protecting women's health, the Louisiana law jeopardizes it, and adds an unneeded layer of bureaucracy to keep doctors from providing abortion, according to Dr. Maureen Phipps, CEO of the American College of Obstetricians and Gynecologists.

"The Supreme Court should strike down the Louisiana law just as it did the Texas law," Phipps said. "Abortion is just as safe now as at the time of this court's consideration of Whole Woman's Health."

If the Supreme Court upholds the law, a district court found that the state would be left with only one abortion provider in Louisiana, and currently roughly 10,000 women seek an abortion in the state each year.

"If the Supreme Court upholds Louisiana's law, we will see a bunch of states dust off unconstitutional regulations of abortion providers and try to make abortion access out of reach for patients," said Tu. "The fundamental question in our case is can a state effectively ban abortion, while leaving Roe v. Wade on the books?"