Pro-choice protesters gather at the Supreme Court on May 21, 2019 in Washington, DC. The Alabama abortion law, signed by Gov. Kay Ivey last week, includes no exceptions for cases of rape and incest, outlawing all abortions except when necessary to prevent serious health problems for the woman.| Tasos Katopodis/Getty Images
WASHINGTON — Michigan and 20 other states are asking the U.S. Supreme Court to strike down a Louisiana law that critics argue places an undue burden on women seeking abortions.
The Supreme Court is scheduled to hear arguments in March in the abortion dispute, which promises to be one of the highest-profile cases before the court this term and which could have implications for reproductive rights across the country. The case, June Medical Services LLC v. Gee, is scheduled for oral argument on March 4.
The amicus brief was submitted to the high court this month by Michigan Attorney General Dana Nessel along with the attorneys representing 20 other states and the District of Columbia.
“Access to abortion is a fundamental right. When a state enacts unnecessary regulations specifically to shutter abortion clinics, it violates a woman’s right to be free from undue burdens to obtain abortion care,” Nessel said in a statement to the Advance.
Nessel has made support for abortion rights a cornerstone of her tenure. At a Planned Parenthood conference in April, she said she believes the Supreme Court will overturn Roe v. Wade, but announced, “I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy.”
That prompted state Senate Majority Leader Mike Shirkey (R-Clarklake) to threaten to impeach Nessel, but he has yet to take action and the chambers lack the votes to do so.
The Supreme Court justices announced in October that they will hear an appeal involving the Louisiana law, which requires any physicians who perform abortions to have admitting privileges at a local hospital. That restriction, critics say, is unconstitutional because it offers no benefits to women’s health that could justify the burdens on abortion access.
The high court previously struck down a similar law in Texas, but the court’s stance on the issue may shift following the retirement of Justice Anthony Kennedy, who sided with the court’s liberal wing in the Texas case. Kennedy was replaced by Justice Brett Kavanaugh, who previously voted against an effort to temporarily block the Louisiana law.
“Just three years ago, the Supreme Court held that type of regulation unconstitutional in June Medical Services v. Gee,” Nessel said. “The Court should follow its own lead and recognize Louisiana’s burdensome overregulation for what it is: an undue burden on a fundamental right.”
The states said in their brief that they have “a substantial interest in the fair and consistent application of well-settled precedent — including the long-recognized substantive due process right to choose to terminate a pregnancy and the undue-burden standard that governs review of regulations implicating that right.”
The Supreme Court’s own precedent, the states told the justices, requires the reversal of the lower court opinion that upheld the Louisiana law.
Michigan was joined in the brief by New York, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
A separate brief urging the high court to strike down the Louisiana abortion law was filed this month by 36 U.S. senators and 161 members of the U.S. House of Representatives.
That includes four members from Michigan: U.S. Reps. Debbie Dingell (D-Dearborn), Rashida Tlaib (D-Detroit), Dan Kildee (D-Flint) and Brenda Lawrence (D-Southfield).
“For nearly half a century,” the lawmakers wrote, “this Court has reaffirmed that the Constitution guarantees a woman’s right to terminate her pregnancy without unnecessary government intrusion.” They warned that “non-uniform recognition of federal constitutional rights creates a patchwork of laws in which one’s constitutional protections are honored or denied based solely on where one lives.”
Nessel also signed on in April to an amicus brief against another anti-abortion case, this time to support Mississippi’s sole abortion clinic. The case, Jackson Women’s Health Organization, et al. v. State Health Officer of the Mississippi Department of Health, et al., is in the Fifth Circuit U.S. Court of Appeals.
It seeks to challenge a state law that prohibits doctors from providing abortion services after 15 weeks of pregnancy. Oral arguments were heard in October.
“Make no mistake, this is the beginning of a concerted effort to overturn Roe v. Wade and to take states – including Michigan – back to the dark ages where women were forced to resort to back-alley abortions for fear of criminal prosecution,” Nessel said in an April statement. “We cannot and will not sit idly by. We have an obligation to step up and speak out for the protection of Michigan women and all women.”
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