Yesterday’s abortion ruling was underwhelming

On the surface, the ruling by the US Supreme Court in the case of JUNE MEDICAL SERVICES L. L. C. ET AL. v. RUSSO to strike down Louisiana’s law that made access to abortion very difficult was a big win for abortion rights. But a closer examination reveals that it may have just set up the next legal challenge.

To understand the ruling, we must note that the Louisiana law under scrutiny was just the latest in a long line of so-called ‘trap’ (targeted regulation of abortion providers) that anti-abortion legislators pass that try to circumvent the right to abortion not by banning them but by imposing regulations on providers that are highly burdensome and unnecessary under the guise of protecting the health of the women seeking abortions. The aim of these laws is to shut down as many abortion clinics as they can because they cannot meet the requirements. This would primarily affect poor people since rich people will be able travel long distances or out of state or even out of the country to get abortions.

In 2016, the Supreme Court took up the case Whole Woman’s Health v. Hellerstedt that dealt with such a trap law in Texas and ruled by a 5-4 margin that the law was unconstitutional. Justice Stephen Breyer’s majority opinion gave the reasoning (citations omitted).

In Planned Parenthood of Southeastern Pa. v. Case, 505 U. S. 833, 878 (1992), a plurality of the Court concluded that there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (Emphasis added.) The plurality added that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as interpreted in Casey. The first provision, which we shall call the “admitting-privileges requirement,” says that

“[a] physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.”

This provision amended Texas law that had previously required an abortion facility to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.”

The second provision, which we shall call the “surgical-center requirement,” says that

“the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.”

We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.

That 2016 Texas opinion did not stop the anti-abortion zealots (nothing ever does) and they passed similar laws in other states hoping that it would go back to the Supreme Court. Federal District Court judges and Appeals Courts rejected those cases based on the Supreme Court ruling, but abortion opponents had better luck with the Louisiana law that was almost identical to the Texas law. That law too was initially struck down by the District Court.

On remand in light of Whole Woman’s Health, the District Court ruled favorably on the plaintiffs’ request for a permanent injunction on the basis of the record previously developed, finding, among other things, that the law offers no significant health benefit; that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety; and that this inability places a substantial obstacle in the path of women seeking an abortion. The court concluded that the law imposes an undue burden and is thus unconstitutional.

But on appeal, the District judge was overruled and the law upheld by the Fifth Circuit Court of Appeals.

Why were anti-abortion zealots trying again with an almost identical law? Because the 5-4 majority in the 2016 Texas case had justice Anthony Kennedy siding with the majority but he had since retired and was replaced by Justice Brett Kavanaugh who was seen as more anti-abortion that Kennedy. So abortion opponents felt that they now had a 5-4 majority in their favor and would win this time.

What must have shocked them was that this time chief justice John Roberts switched sides and provided the 5-4 majority again striking down the law, with the majority opinion again written by justice Breyer. But the switch was not because Roberts had changed his mind. Indeed, in his concurring opinion, he wrote that he still felt that the Texas case had been wrongly decided. Robert’s reasoning was not on the merits of the case but because of stare decisis (“to stand by things decided”), which is legalese for fidelity to precedent, that you cannot ditch legal precedent without greatly changed circumstances. As he wrote in his concurring opinion:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

Why did the court decide to hear this case anyway if it was just like the previous one? It may be because it takes just four votes for the court to agree to hear a case and although we are never told about how those votes go, it seems clear that the four dissenters in this case must have wanted to repudiate the Texas decision and they may have not fully appreciated that Roberts would invoke stare decisis to defect.

There is another bit of good news though. In their haste to get the Louisiana case quickly through the lower courts and up to the Supreme Court, the backers of the law were willing to not contest whether abortion providers had the standing to sue on behalf of their patients. Usually, it is a person directly harmed by a law that has the standing to sue for redress. These laws seek to practically eliminate access and it is poor women who will be hurt most. Granting abortion providers standing to sue makes it easier to challenge these laws. Abortion opponents tried to raise the standing question in the Supreme Court but the court ruled that it was too late. As Breyer wrote:

The State argued that there was no reason to delay a ruling on the merits of the plaintiffs’ undue-burden claims. It asserted that there was “no question that the physicians had standing to contest the law.”

The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question.

The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.

In any event, the rule the State invokes is hardly absolute. We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.

And we have generally permitted plaintiffs to assert third-party rights in cases where the “‘enforcement of the challenged restriction against the litigant would result in- directly in the violation of third parties’ rights.’ ”

You can be sure that abortion opponents are already busily at work trying to figure out how to craft a law that is equally or more burdensome on women seeking abortions while different enough from the Texas and Louisiana laws to not be bound by these two precedents. This is why we need to treat this victory on abortion rights with some reservations. What it did was buy some time.

But a victory with caveats is still better than losing because a loss would have been terrible.

As a further bonus, abortion opponents who must have thought that they had in this bag will go ballistic at what they will see as yet another betrayal by Roberts, adding to his rulings on Obamacare, LGBT employment rights, and DACA. The attacks have already started.


  1. machintelligence says

    Conservatives will be as disappointed in Roberts as they were with Earl Warren (an Eisenhower appointee.)

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