TFF Joins Supreme Court Brief to Limit Abortion

Because there is widespread evidence of the potential complications of abortion procedures and abortionists’ failure to care for their patients, the Louisiana legislature passed a law requiring that doctors performing abortion have admitting privileges in a nearby hospital. Although a nearly identical statute was found unconstitutional two terms ago (5-4 with Justice Kennedy supplying the final vote), the Fifth Circuit held that, under the facts of the Louisiana case, the regulation was constitutional.

The Supreme Court asked for briefs on two specific questions:  (1) whether the regulation was an “undue burden” on a woman’s right to abortion, and (2) whether the abortion providers had standing to raise the issue for women when the regulation was meant to protect women patients.  Needless to say, the case has had much attention, and many amicus briefs have been filed on each side of these issues.

The Family Foundation, along with several other pro-life organizations, joined a brief that argued that there was a methodological flaw in considering whether this regulation creates an “undue burden.”  Both the Texans and Louisiana attorneys general focused only on the existing abortionists at the time the regulation was passed (six in Louisiana) and whether the new regulation about access to a hospital in case of complications eliminates the eligibility of some of them to continue to provide abortions.  That method ignores, however, the many doctors who are qualified and licensed to do abortions but who do not wish to do so.  The private actions of these doctors, whether motivated by conscience or economics, should not be attributed to the state, and therefore the state is not creating an “undue burden.”

The Family Foundation pointed out that the Court may take judicial notice from readily available and reliable data that there are over 100 general hospitals scattered throughout Louisiana, all with doctors qualified, if they so desired, to perform abortions.  In other words, the Louisiana law, a reasonable regulation intended to promote the health and well-being of women, does not “unduly burden” a woman’s right to an abortion from a constitutional standpoint.  Any lack of access to doctors willing to perform abortion is predominantly attributable to considerations other than the challenged regulation, and it should be upheld.

DC Attorney Rick Claybrook, the primary author of the brief, stated that a decision will likely be issued in June 2020.