Did Louisiana Enact a Bogus Health Law as a Pretext for Banning Abortion?

Another abortion case is now in the hands of the U.S. Supreme Court. At issue in June Medical Services v. Russo is the constitutionality of a Louisiana law that requires physicians who perform abortions to have admitting privileges at local hospitals. According to the state, the law serves a valid health and safety purpose and should be upheld as a legitimate exercise of government power. According to the legal challengers, the law is a bogus regulation whose only purpose is to drive lawful abortion providers out of business.

The Supreme Court decided a nearly identical case in Whole Woman's Health v. Hellerstedt (2016), striking down a Texas law requiring physicians who perform abortions to have admitting privileges at local hospitals on the grounds that the law conferred no "medical benefits sufficient to justify the burdens upon [abortion] access" it imposed.

When the constitutionality of a purported health or safety law is at issue, the Supreme Court generally employs a legal standard known as the rational-basis test. "The burden is on the one attacking the legislative arrangement," the Court has said of rational-basis review, "to negative every conceivable basis which might support it." The government usually prevails in rational-basis cases.

But for abortion regulations, even though they too ostensibly concern health and safety, the Supreme Court employs something known as the undue burden test. This originated in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), in which the Court said that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right" and should thus be invalidated.

These differing standards have inspired some curious intellectual contortions among left-of-center legal thinkers. New York Times pundit Linda Greenhouse, for example, has criticized the libertarian legal movement for challenging New Deal–era precedents that give federal and state lawmakers "a wide berth" to pass health and safety regulations. Thanks to the efforts of libertarians, she complained, "conservatives are lining up not to denounce judicial activism, but to embrace it." But Greenhouse is all-in on judicial action if a health or safety regulation happens to touch on abortion. The courts must weigh "the benefit the law actually conveys" in those cases, she has argued, "not the benefit the state claims for it." As for June Medical Services, she says, the challenged regulation serves "no medical purpose."

When it comes to abortion regulations, liberals can sometimes sound downright libertarian.