Justices Give Few Hints on How They Will Rule on Louisiana Abortion Law

WASHINGTON — The argument at times sounded like a sterile analysis undertaken by management consultants: What were the benefits of requiring doctors who perform abortions to have relationships with nearby hospitals? Would requiring such relationships force abortion clinics to close?

The questions — about medical regulations, hospital bylaws, travel times and safety records — could seem pedestrian in their granular details. But the cost-benefit analysis undertaken on Wednesday at the Supreme Court illustrated its current approach to the right to abortion, one that seems to turn on contested factual disputes rather than broad constitutional principles.

The arguments were the court’s first sustained consideration of abortion since President Trump’s appointments of Justices Neil M. Gorsuch and Brett M. Kavanaugh shifted the court to the right. The case is very likely to yield an unusually telling decision, expected in June, with broad implications for the presidential campaign.

At issue was a Louisiana law that requires doctors performing abortions to have admitting privileges at nearby hospitals, a requirement that abortion rights groups say is medically pointless and intended to limit the number of clinics in the state.

Supporters of the Louisiana law say it protects the health and safety of women seeking abortions and helps ensure the competence of doctors.

Opponents say the law’s real purpose is to make it harder for women to get abortions. Doctors who perform abortions are often unable to obtain admitting privileges for reasons unrelated to their competence, the law’s critics say, and the privileges themselves do not make abortions safer, as hospitalizations after abortions are rare and women receive medical care at hospitals regardless of whether their doctors have admitting privileges.

Since the Louisiana law was enacted in 2014, only two doctors have been able to meet the requirement, the law’s challengers say, and one testified that he could not handle his clinic’s work alone.

The members of the court who may hold the key votes — Chief Justice John G. Roberts Jr. and Justice Kavanaugh — focused their questions on whether they were bound by a 2016 decision by the court that struck down an identical Texas law. They suggested that at least half of the cost-benefit analysis was identical in the two states, and they wondered whether that was sufficient to decide the case.

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

The court’s four liberal members seemed convinced that the Louisiana law, like the one from Texas, imposed the sort of “undue burden” on the right to abortion prohibited by the court’s 1992 decision in Planned Parenthood v. Casey. The law did nothing to protect women’s health, they said, but it did create a substantial obstacle to the ability of women to obtain abortions.

Only Justice Samuel A. Alito Jr. asked questions consistently supportive of the Louisiana law. Justices Gorsuch and Clarence Thomas asked no questions.

Justice Stephen G. Breyer said the very divisiveness of the societal debate over abortion argued in favor of respect for precedent.

“In the country, people have very strong feelings, and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong,” he said. “The court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.”

“Why depart,” he asked, “from what was pretty clear precedent?”

The vote striking down the Texas law in 2016 was 5 to 3, with Justice Anthony M. Kennedy, now retired, joining the court’s four-member liberal wing to form a majority. The case was decided by an eight-member court after the death of Justice Antonin Scalia that February. Since then, Mr. Trump appointed Justice Gorsuch to succeed Justice Scalia and Justice Kavanaugh to succeed Justice Kennedy.

In the 2016 decision, Justice Breyer, writing for the majority, said there was no evidence that the Texas law’s admitting-privileges requirement “would have helped even one woman obtain better treatment.” But there was good evidence, he added, that the requirement caused the number of abortion clinics in Texas to drop to about 20 from about 40.

Chief Justice Roberts repeatedly suggested on Wednesday that at least the first part of the analysis should be the same in Louisiana as it was in Texas. “Why do you look at each state differently if the benefits of the law” are “not going to change from state to state?” he asked.

Justice Kavanaugh asked whether the admitting-privileges requirement offered any benefits to women seeking abortions and, if it did not, whether that should be the end of the matter.

“Are you saying,” he asked Julie Rikelman, a lawyer with the Center for Reproductive Rights, “that admitting privilege requirements are always unconstitutional such that we don’t need to look at the facts state by state?”

“These laws have no medical benefits whatsoever, and only impose barriers to abortion,” Ms. Rikelman said.

Justice Kavanaugh also asked whether the court would be required to strike down admitting-privileges laws even if all doctors seeking to provide abortions could obtain the privileges.

Ms. Rikelman said “that law would have no benefit.” But she added that such a law “may pose a much harder question than this case.”

The Louisiana law requires abortion providers to have admitting privileges at a hospital within 30 miles, a requirement that some justices questioned.

“What sense does the 30-mile limit make?” Justice Ruth Bader Ginsburg asked, noting that complications are likely to arise, if at all, after a woman returns home. “And her home has no necessary relationship to 30 miles from a clinic.”

Lawyers for Louisiana and the federal government defended the law, saying it provided needed protections, and they urged the court to scrutinize the facts on the ground in Louisiana.

The burdens imposed by admitting-privilege laws, said Jeffrey B. Wall, a lawyer for the federal government, “may vary by state.”

Justice Kagan discussed the record of a clinic in Shreveport, La. “There is evidence in the record that Hope Clinic has served over 3,000 women annually for 23 years, so that’s around 70,000 women,” she said, “and has transferred only four patients ever to a hospital.”

Elizabeth Murrill, Louisiana’s solicitor general, said those numbers may not have taken account of women who developed complications after the procedures. She added that the doctors had not tried hard enough to obtain privileges. “They sabotaged their own applications,” she said.

Justice Sonia Sotomayor said the requirement was unrealistic, singling out one doctor.

“He’s the doctor who does only medical abortions, not surgical,” she said. “He hadn’t done a surgical procedure for over 12 years. And your state’s own expert testified that it was not likely that he was going to get privileges anywhere because he only did medical procedures.”

The Supreme Court granted a last-minute request last year from abortion providers to block the Louisiana law while they pursued an appeal in the case. That interim ruling featured an unusual 5-to-4 coalition, with Chief Justice Roberts joining the court’s liberals. He had dissented in the Texas decision.

The meaning of Chief Justice Roberts’s vote to temporarily block the Louisiana law is unclear, and it is hardly certain that he will vote to uphold the law now that it is before the court on its merits. Instead, he might have meant only to ensure an orderly process in which the Supreme Court, rather than an appellate panel, decides whether to limit or overrule a recent Supreme Court precedent.

The court agreed to hear the abortion providers’ appeal in October. At the same time, the court also agreed to decide another issue pressed by Louisiana in a separate petition: whether abortion providers have legal standing to challenge health and safety regulations on behalf of their patients.

If the court accepts that argument, it could avoid deciding whether the Louisiana law is constitutional. But only Justice Alito asked questions suggesting that he was prepared to accept the argument.

However the court rules, other abortion cases are likely to follow. Several state legislatures have enacted laws that seem calculated to try to force the Supreme Court to consider overruling Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Mr. Trump has vowed to appoint justices who will vote to overrule the decision.