For pro-life attorneys, the stakes don’t get much higher

On March 4 at 10 a.m. (EST), Louisiana Solicitor General Elizabeth Murrill will stand before the nine U.S. Supreme Court justices to argue why a state law requiring physicians who perform abortions to have admitting privileges at a local hospital is constitutional – which would affirm the 2018 ruling of a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans. 

Dorinda Bordlee, vice president and chief legal counsel of the Bioethics Defense Fund, helped craft the 2014 Louisiana law and is more than an interested party to the oral arguments.
 

For the last several weeks, Bordlee and other pro-life, constitutional experts have been prepping Murrill for her Supreme Court appearance by holding moot courts – essentially practice sessions in which questions, both expected and unexpected, are thrown out in an attempt to rattle her, thereby sharpening her logic and debating skills.
 

Murrill is exceedingly sharp, Bordlee says. She twice has presented oral arguments before the U.S. Supreme Court. The excitement of jousting for 60 minutes – lawyers for the Center for Reproductive Rights will get the first 30 minutes and Murrill will share the final 30 minutes with the supportive U.S. solicitor general – is about as high stakes as it gets in the legal profession.
 

“Her experience arguing before the Supreme Court is fantastic,” said Bordlee, who will have a seat in the Supreme Court gallery on March 4. “In the moot courts, we’ve acted in the role of the justices, and we’ve thrown all kinds of questions at her that we think will be asked. And after she’s answered them, we’ve sat down afterwards and talked about the most effective way to use the record that was developed in this case about shoddy abortion practices and the injuries to women – which were the reason the Legislature passed this law to begin with in 2014.”
 

Bordlee says the case – June Medical Services v. Gee – has two major components. The first is whether or not it is constitutional to require abortion doctors to have admitting privileges at a local hospital.
 

“This is a common-sense, pro-woman, pro-life law,” Bordlee said. “There are known medical risks of abortion, just like with any surgery. So, when a woman faces one of those risks – a punctured uterus, a torn cervix – the doctor who has engaged in that procedure should be able to admit her to the hospital.

 

That’s called ‘admitting privileges.’ He should be able to follow his patient and provide the care she needs, rather than abandoning her to the emergency room and losing that valuable time when she could be bleeding out. It’s a very simple law.”
 

After the 5th Circuit upheld the law, the Center for Reproductive Rights appealed to the Supreme Court. The Louisiana Attorney General’s office filed a brief essentially saying that if the high court was going to consider the case, it wanted the court also to look at a legal doctrine called “third-party standing.”
 

“That’s the practice that’s been happening where abortion industry representatives and their lawyers have been suing the state and challenging these common-sense regulations like ultrasound laws by saying that it hurts women’s health,” Bordlee said. “And, they’re claiming to speak for women. Well, guess what, it’s 2020, and women can speak for themselves – and not one woman came forward and complained about the fact that a doctor would need to be able to admit her to a hospital. If we win on that, you’ll see about 80% of the cases that the abortion industry brings against pro-life laws completely go away. It’s a really big deal.”
 

The dynamics of the 2020 court are both intriguing and inscrutable. Since a fairly similar Texas law was ruled unconstitutional by the Supreme Court in 2016 – the ruling came after the death of Justice Antonin Scalia – the court has seen the departure of Justice Anthony Kennedy and the arrival of justices Neil Gorsuch (2017) and Brett Kavanaugh (2018).
 

Bordlee believes Chief Justice John Roberts, appointe by President Bush in 2005, could be the swing vote.
 

“Let’s put it this way – he’s been unpredictable,” Bordlee said.   
  If the court were to issue a broad decision in the state’s favor, Bordlee said that could impact Roe in the future.
 

“It’s difficult to say because the court could issue a very narrow decision that just talks about third-party standing,” Bordlee said. “They could just uphold this particular law that protects women’s health. Or, because this court has the jurisdiction to address the abortion issue as a whole, they could, if they wanted to, with this case or any abortion case, revisit Roe and address the way that it’s been unworkable and the impact that it’s had on women and children in our democracy. That all remains to be seen.”
 

Bordlee said for those wishing to hear the oral arguments in the case, the U.S. Supreme Court usually makes available the audio version of the oral arguments on its website – www.supremecourt.gov – later in the day.

Peter Finney Jr. can be reached at [email protected].