Newly conservative supreme court to hear arguments in abortion rights case

A remade conservative majority on the US supreme court will hear oral arguments in a case this week that could result in grave new restrictions on abortion access while technically leaving the landmark 1973 Roe v Wade decision in place, health advocates warn.

Donald Trump’s appointment of justices Neil Gorsuch and Brett Kavanaugh has created the most hostile court in generations when it comes to support for a woman’s right to choose, activists say.

Trump said during the 2016 presidential campaign that he wanted control of laws governing abortion to return to the states, an effective call for an end to Roe, which established a woman’s right to choose nationwide.

Related: Will 2020 be the year abortion is banned in the US?

The new conservative court majority will for the first time have a chance to flex its muscle on abortion beginning on Wednesday, when oral arguments are scheduled in the June Medical Services LLC v Russo case.

The case considers a Louisiana state law requiring abortion providers to have admitting privileges at a nearby hospital. Just three terms ago, the supreme court struck down an identical law in Texas, ruling that the admitting-privileges provision did nothing to protect women’s health while illegally restricting abortion access.

But with Gorsuch and Kavanaugh on the bench, legal analysts are warning the outcome could be different this time. Ruling with the majority in the prior case was justice Anthony Kennedy, who often provided swing votes in key abortion decisions.

What is the Louisiana law?

The case from Louisiana is called June Medical Services v Russo. It centers around a state law which requires doctors who perform abortions to have “admitting privileges” at a local hospital. Admitting privileges are usually granted to a hospital’s staff doctors, and allow them to admit a patient for treatment.

Abortion rights advocates argue this is an attempt to place an insurmountable barrier in the way of abortion clinics seeking to lawfully operate, and that such requirements will ultimately shut them down. Many hospitals are wary of links to abortion doctors. In other cases, abortion clinics may be located too far from hospitals to comply with the law.

The supreme court heard a nearly identical case from Texas in 2016, called Whole Woman’s Health v Hellerstedt. The court found that laws requiring admitting privileges do not confer medical benefits to women, and that they place a “substantial obstacle” for women who seek abortions.

Could the court overturn Roe v Wade?

Yes, although it is unlikely to do so outright. However, even if abortion remains legal, such requirements as called for in the Louisiana law could lead to the closure of many clinics in states where such laws exist. Louisiana, for example, could be left with just one clinic.

The court’s choice to hear this case at all is already incredibly rare. The supreme court hardly ever hears cases similar to recent rulings, and this Louisiana law is almost identical to a law overturned just three years ago.

What’s the significance of the supreme court under Trump?

President Trump appointed two socially conservative jurists to the court: Justices Neil Gorsuch and Brett Kavanaugh. Importantly, Kavanaugh replaced a justice who was known as a “swing vote”, and supportive of Roe v Wade. This case is the first test of the court on abortion with its new, more conservative make-up. This means anti-abortion groups could get a more sympathetic hearing.

Are abortion rights unpopular in America?

No. Polls consistently show a majority of Americans support the right to an abortion.

So who is pushing this?

The anti-abortion movement in America is organized, motivated and well funded. It has also been emboldened by the rhetoric of Donald Trump, who sees white evangelical Christians as a core part of his base.

The anti-abortion movement often passes multiple, similar laws that push constitutional boundaries, in an effort to provoke favorable decisions from federal courts.

If Roe v Wade is overturned as many as 22 states stand ready to ban abortion.

Kennedy was replaced by Kavanaugh 17 months ago. In a 2017 speech praising a dissent by the late chief justice William Rehnquist to a ruling upholding abortion rights, Kavanaugh admired Rehnquist’s assertion that a right to abortion was not “rooted in the traditions in conscience of our people.”

Gorsuch, who replaced the staunch conservative justice Antonin Scalia, is viewed with deep concern by health advocates for having written about euthanasia using broad language – “the intentional taking of human life by private persons is always wrong” – that seemed also to refer to abortion.

If the three conservative justices who dissented in the Texas case – John Roberts, Clarence Thomas and Samuel Alito – remained a bloc and were joined by Gorsuch and Kavanaugh, the Louisiana case could break in the opposite direction from the Texas case.

That could have devastating results for abortion access nationwide, Leah Litman, an assistant professor of law at the University of Michigan, wrote in the Atlantic.

“A ruling for Louisiana could allow states to end legal abortion without overruling Roe – and also allow the court to test the waters on whether to ultimately overturn Roe,” Litman wrote.

Louisiana has passed by far the most restrictions on abortion of any state since Roe v Wade in 1973, according to a study by the Guttmacher Institute first obtained by CBS News.

The Republican-dominated legislature of Louisiana passed 89 such restrictions, the study found. Indiana was second with 63 and Oklahoma was third with 60.

“When you look at the history of abortion restrictions and bans in Louisiana, none of that supports patient health,” Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a pro-abortion rights research organization, told CBS earlier this month.

On the eve of the oral arguments, advocates criticized Senator Susan Collins and others who voted to confirm Gorsuch and Kavanaugh but claimed they thought the pair would protect a woman’s right to choose.