Will a Supreme Court Case Spell the Beginning of the End of Abortion?
How the high court responds to 'June Medical Services v. Gee' in March and future abortion disputes may set the stage for what's next for the constitutional right.
January 30, 2020 at 10:00 AM
9 minute read
The U.S. Supreme Court's latest foray into the fight over reproductive rights will test the views of its two newest justices and challenge the high court's respect for its prior abortion decisions. Some observers state that the case, June Medical Services v. Gee, which challenges Louisiana's abortion law, has the potential to be the beginning of the end of the constitutional right to an abortion, or as Justice Stephen Breyer once said in a different context, "death by a thousand cuts."
At first blush, the case, set for argument in early March, appears to be a rerun of the court's 2016 case, Whole Woman's Health v. Hellerstedt, and could be quickly resolved based on that earlier decision. The Whole Woman's Health ruling was a win for abortion rights.
Both cases involve a state requirement that physicians performing abortions have hospital admitting procedures within 30 miles of the abortion facility. Only the states are different—Louisiana in the case justices soon will hear and Texas in the case argued a few years ago. If the Louisiana law were enforced, a federal district court found that only one physician at one of the state's three clinics would remain to provide services for an estimated 10,000 women seeking abortions each year.
"Any time the Supreme Court takes up one of these cases there are land mines," said Andrew Beck of the ACLU's Reproductive Freedom Project, a friend-of-the-court who is supporting June Medical Services. "But the court is to apply precedent faithfully and if it does that, it's quite a simple case."
A 'Rule-Of-Law Case.'
The Louisiana case is about hospital admitting requirements, but it is also about precedent, deference to district court fact-findings and the ability of abortion providers to challenge restrictions on behalf of their patients. How the Supreme Court without Justice Anthony Kennedy will react to this case and future abortion disputes could be in focus on March 4, when the Louisiana case goes before the court and its newest justices, Brett Kavanaugh and Neil Gorsuch.
The Louisiana abortion challenge, filed by the Center for Reproductive Rights, will be the first abortion case to be heard by the justices since Gorsuch and Kavanaugh took their seats. In Whole Woman's Health, a 5-3 majority, with Kennedy's key vote, ruled that the Texas admitting privileges requirement had no health benefits for women and thus was an undue burden on their abortion right.
Because the Louisiana requirement is identical to the Texas law, lawyers for June Medical contend that the U.S. Court of Appeals for the Fifth Circuit was wrong to distinguish the laws by rejecting the district court's findings of fact and by refusing to apply the Whole Woman's Health analysis, which requires weighing benefits and burdens of the regulation.
"This is a critically important abortion rights case but it's also a rule-of-law case," said Center for Reproductive Rights senior counsel Travis J. Tu, counsel of record for June Medical, which is also represented by lawyers from O'Melveny & Myers. "We say there are basic rules of the road that courts are to apply that are meant to insulate them from the skepticism that judges are deciding cases based on their own views or ideology about abortion."
The Fifth Circuit, Tu said, failed to apply two of those rules: that legal holdings of higher courts are binding on lower courts and that a trial court's factual findings govern on appeal unless clearly erroneous.
"Our concern is the Fifth Circuit was basically making a calculated decision that the Supreme Court, based on its changed makeup, wouldn't stand by the precedent issued three years ago," Tu said. "If the Supreme Court lets that decision stand, it invites that kind of gamesmanship—which precedents will they stand by or no longer stand by. That has implications that reach far beyond our case."
Hundreds of female law partners, professors, civil rights advocates and students signed an amicus curiae brief urging the justices not to restrict access to reproductive services. The brief, filed by a team from Paul, Weiss, Rifkind, Wharton & Garrison, shared personal stories about abortion.
"Amici submit this brief, some at immeasurable personal and professional cost, for the countless others who may not have the tools to navigate the legal system to secure all that the Constitution and the court have rightfully promised them," Paul Weiss partner Claudia Hammerman wrote in the brief.
'Clarify, Narrow, or Overrule.'
Louisiana, represented by state Solicitor General Elizabeth Murrill, has countered that the Louisiana law does not burden abortion in the same or worse way as the Texas law in Whole Woman's Health.
"The law does nothing more than extend a longstanding Louisiana requirement that doctors who provide outpatient surgery at surgical centers have admitting privileges at local hospitals," Murrill told the justices in a brief. "Under Act 620, abortion providers are treated like any other doctor."
The state contends that the "burden" on women of any more than a minimal delay for abortion procedures at one of three Louisiana clinics would be the fault of the physicians who have not sought admitting privileges.
"Plaintiffs are not asking this court to apply Hellerstedt, but to transform it into something unrecognizable and unworkable," Murrill told the justices. "Indeed, plaintiffs appear to view Hellerstedt as a vehicle to wipe out virtually all abortion regulation, untethered to any recognizable precedent."
Louisiana's attorneys argue that Whole Woman's Health is "susceptible to radical misinterpretations" and the justices should clarify, narrow or overrule it.
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