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Abortion rights demonstrators rally outside the U.S. Supreme Court, in Washington, on March 4, 2020.

Jose Luis Magana/The Associated Press

U.S. Supreme Court justices appeared divided on Wednesday in a major abortion rights case, with Chief Justice John Roberts representing the potential decisive vote on a challenge to a Louisiana law that could make it harder for women to obtain the procedure.

The court, with a 5-4 conservative majority, heard arguments in an appeal by Shreveport-based abortion provider Hope Medical Group for Women seeking to invalidate the 2014 law. The measure requires that doctors who perform abortions have a sometimes difficult-to-obtain arrangement called “admitting privileges” at a hospital within 30 miles (48 km) of the clinic.

The liberal justices, including the court’s three women, appeared skeptical toward that requirement. The conservative justices seemed more receptive.

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Roberts and fellow conservative Justice Brett Kavanaugh asked questions that suggested they – and perhaps other conservative justices – do not believe the Louisiana law is automatically doomed by a 2016 Supreme Court precedent that struck down similar admitting privileges restrictions in Texas.

Roberts, considered the court’s ideological centre, cast the deciding vote last year when the justices on a 5-4 vote blocked Louisiana’s law from taking effect while the litigation over its legality continued.

That vote brought him into conflict with his position in the Texas case when Roberts was among the three dissenting justices who concluded that an admitting privileges requirement did not represent an impermissible “undue burden” on abortion access.

Roberts appeared to acknowledge in his questions that he might feel bound by the court’s 2016 finding that admitting privileges laws provide no health benefit to women. But his questions also indicated he may stray from the 2016 finding about the specific impact of the Texas law, which led to multiple clinic closures, because Louisiana’s situation could be viewed differently.

Two of Louisiana’s three clinics that perform abortions would be forced to close if the law is allowed to take effect, according to lawyers for the clinic. Louisiana officials have said no clinics would be forced to close.

“I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that’s going to be the same in each state, isn’t it?” Roberts asked.

Roberts indicated that the 2016 ruling requires the analysis to be “a factual one that has to proceed state-by-state.”

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The questions asked by Roberts and Kavanaugh could open the possibility of them voting to uphold the Louisiana law without specifically overturning the Texas precedent. Kavanaugh asked whether “in some states, admitting privileges laws could be constitutional, if they impose no burdens.”

RESTRICTIVE STATE LAWS

The case, with a ruling due by the end of June, will test the court’s willingness to uphold Republican-backed abortion restrictions being pursued in numerous conservative states. President Donald Trump’s administration supported Louisiana in the case.

Abortion remains one of the most divisive issues in American society, with Christian conservatives – an important constituency for Trump – among those most opposed to it.

Abortion rights advocates have argued that restrictions such as admitting privileges are meant to limit access to abortion not protect women’s health as proponents say. When the Supreme Court in 1992 reaffirmed the Roe v. Wade ruling, it prohibited laws that placed an “undue burden” on a woman’s ability to obtain an abortion.

Liberal Justice Sonia Sotomayor said it was a “mystery to me” why a 30-mile limit was imposed if the law’s intent was to show that doctors were properly credentialed. She asked why doctors could not get credentials from hospitals further away.

Fellow liberal Justice Ruth Bader Ginsburg also questioned the 30-mile limit, noting that in most cases women who have complications from abortions would be at home after the procedure and not at the clinic. As a result, it would not be relevant that the doctor has a relationship with a local hospital, she said.

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Trump, seeking re-election on Nov. 3, promised during the 2016 presidential race to appoint justices who would overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide. The Louisiana case marked the first major abortion dispute heard by the court since Trump appointed Kavanaugh and Neil Gorsuch as justices.

Gorsuch said nothing during the argument. Conservative Justice Clarence Thomas, who rarely speaks during arguments, was also silent.

The most outspoken conservative was Justice Samuel Alito, who questioned whether the clinic and doctors even had legal standing to bring the challenge because their interests are different from their patients. He suggested that women seeking abortions should be plaintiffs in such cases.

Conservative Justice Anthony Kennedy, who retired in 2018, joined the four liberal justices to defend abortion rights when the court struck down the Texas law.

Baton Rouge-based U.S. District Judge John deGravelles cited the undue burden precedent when he struck down Louisiana’s law in 2016. After Louisiana appealed, the New Orleans-based 5th U.S. Circuit Court of Appeals upheld the law.

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