The Supreme Court agreed on Friday to hear June Medical Services v. Gee, a challenge to Louisiana’s stringent abortion restrictions. There is very little doubt that the conservative majority will use this case to overrule 2016’s Whole Woman’s Health v. Hellerstedt, allowing states to regulate abortion clinics out of existence. In the process, the Republican-appointed justices will set the stage for the formal reversal of Roe v. Wade. The court’s decision to hear June Medical Services came with the alarming announcement that it will also consider whether to strip doctors of their ability to contest abortion laws in court. These aggressive moves augur an impending demise of the constitutional right to abortion access.
Perhaps the most important thing to know about this case is that it shouldn’t be at the Supreme Court at all. It revolves around a Louisiana law that compels abortion providers to obtain admitting privileges at a hospital within 30 miles. In Whole Woman’s Health, the justices addressed a virtually identical statute passed in Texas. It found that this requirement provided no health benefit to women. The court explained that an abortion law violates the Constitution if the burdens it imposes on patients outweigh the benefits. Because Texas’ admitting privileges law provided no benefits, the court struck it down as an “undue burden.”
In light of this precedent, the 5th U.S. Circuit Court of Appeals should’ve made quick work of the Louisiana law. As the court was considering the case, however, Justice Anthony Kennedy retired from the bench. Kennedy, who provided the fifth vote in Whole Woman’s Health, would be replaced by Brett Kavanaugh, a vocal foe of abortion rights.
Following Kennedy’s retirement, the 5th Circuit defied Whole Woman’s Health. The court ruled that admitting privileges actually benefited women by performing a “credentialing function,” and accused Louisiana doctors of having “sat on their hands” instead of trying to get these privileges. Moreover, even though the law would indisputably put some abortion providers out of business, another doctor could simply perform hundreds of extra abortions each year to pick up the slack. (Just one doctor in the entire state could continue to operate under the law.) Women would have to wait longer for the procedure, the 5th Circuit held, but that burden would not be unconstitutional.
All of this analysis is dead wrong. No Louisiana doctors “sat on their hands”; they were denied admitting privileges because nearby hospitals opposed abortion. More importantly, admitting privileges do not provide a “real” benefit to women, as the 5th Circuit claimed. They are, as the Supreme Court ruled, useless for patients. Since the Louisiana law imposed a significant burden on women by reducing abortion providers and increasing wait times—without providing any countervailing benefits—it is plainly impermissible under Whole Woman’s Health.
Because the 5th Circuit refused to adhere to binding precedent, Louisiana’s abortion providers asked the Supreme Court to step in and block the law. It agreed to do so—but only by a 5–4 vote, with Chief Justice John Roberts joining the liberals. In dissent, Kavanaugh argued that the court should allow the law to take effect and force the doctors to seek admitting privileges once again. His opinion was a rejection of Whole Woman’s Health, dismissing the reality that Louisiana, like Texas before it, was trying to shutter clinics, not help women.
Given Kavanaugh’s refusal to abide by precedent, the outcome of June Medical Services likely depends upon Roberts. It is true that the chief justice voted to block the law while the clinics appealed to SCOTUS. But his vote is best understood as a reminder to lower courts that they cannot flout liberal precedent just because Kennedy is off the bench. Roberts did not want the 5th Circuit to overturn Whole Woman’s Health on its own—only the Supreme Court can reverse its own precedent. But Roberts dissented in Whole Woman’s Health. And when the case comes squarely before him, he will probably follow his conservative instincts, overturn or hollow out Whole Woman’s Health, and allow states to impose draconian regulations on abortion providers that obligate clinics to shut their door.
The clearest indication of Roberts’ vote is the fact that the court scheduled June Medical Services for oral arguments. When an appeal presents no new question of law and is clearly resolved by precedent, SCOTUS sometimes issues per curiam summary decisions. That means the justices affirm or reverse a lower court ruling without oral arguments through a brief, unsigned order. They prefer to issue these decisions when six justices sign on, but that’s not a rule, and the court has issued 5–4 summary reversals before.
Given that Whole Woman’s Health obviously bars Louisiana’s law, the Supreme Court should have issued a summary reversal in June Medical Services. Roberts could have joined the liberal justices once again to remind the 5th Circuit that it must still adhere to abortion precedent in a post-Kennedy world. The fact that he did not suggests that he is not prepared to reverse the 5th Circuit. Indeed, it raises the strong possibility that the chief justice is eager to overturn Whole Woman’s Health altogether.
There is another ominous sign in Friday’s order. When the court took on a challenge to the Louisiana law, it also agreed to hear Louisiana’s challenge to the plaintiffs’ standing. In almost every abortion case, clinics and doctors sue on behalf of their patients. The Supreme Court approved this practice 43 years ago, and for good reason: It would be cruel to force a pregnant woman to file a lawsuit in pursuit of an abortion, and clinics have a close relationship with patients, placing them in an excellent position to represent their interests. Now Louisiana wants SCOTUS to reverse more than four decades of precedent, compelling women to sue for themselves. The state argues that patients’ interests actually conflict with clinics’ because patients should want the so-called health and safety regulations that clinics resist.
T.J. Tu—an attorney at the Center for Reproductive Rights, which represents the Louisiana clinics—told me on Friday that the consequences of abolishing clinic standing would be “radical and devastating.” Flagrantly illegal abortion restrictions would go unchallenged because no woman would want to march into court demanding a right to terminate her pregnancy.
“As a practical matter,” Tu said, “many women will not have the resources or the capability to bring these cases, even when the state is running roughshod over their rights. Women seeking an abortion already have to jump through so many hoops, like waiting periods and biased counseling. They cannot be expected to mount a legal challenge in order to exercise a constitutional right.”
Tu pointed out that stripping clinics of the right to sue would also have a “destabilizing effect on abortion jurisprudence.” Almost every other major abortion case aside from Roe was brought by doctors and clinics. “If the court said none of those plaintiffs ever had standing, what does that mean?” Tu asked. “Does the court take a body of abortion jurisprudence and say, ‘Never mind’? It would call all those cases into question.” Put differently, the Supreme Court will soon decide whether to overrule the foundation of modern abortion law, reaffirmed as recently as Whole Woman’s Health.
If the majority takes that leap, it is only another short step toward overturning Roe altogether. If states can close every abortion clinic within their borders under the pretext of safety regulations, the right to abortion will exist in theory, not fact. Most if not all red states will promptly pass pseudo–health laws that make it impossible for doctors to perform legal abortions. Once abortion is effectively outlawed in much of the country, the conservative majority can conclude that abortion precedent is unworkable and unjustifiable and formally eradicate the constitutional right to terminate a pregnancy. We may soon remember June Medical Services as the beginning of the end of Roe.
Abortion Judiciary Supreme Court
Slate · by Mark Joseph Stern · October 4, 2019