Its been a heck of a SCOTUS term so far, with key rulings on Gay Rights; DACA and now abortion. This decision today in June Medical Services LLC v. Russo, is a great relief to supporters of women’s reproductive rights. Since the language of this law was nearly identical to the Texas law struck down by SCOTUS in Whole Women’s Health v. Hellerstedt (“WWH”), just four years ago, this should have been a cut and dried 9-0 based on stare decisis, the legal principle that courts should adhere to the principles in cases previously decided. But with such a highly politicized court, we end up with six different opinions resulting in a 5-4 split. This will likely push both political parties to heighten the importance of the next President.
So let’s break it down quickly. FACTS: A Louisiana women’s health care center sued to stop enforcement of a Louisiana state law requiring doctors performing abortions to have an admitting privileges in an area hospital. Never mind that abortion is often performed in doctor’s offices and is one of the safest surgical procedures practiced. And of course, Louisiana hospitals were finding reasons to deny privileges to the plaintiff doctors so that they effectively were prevented from performing abortions. The law at issue was Louisiana’s Act 620, which “requires an abortion provider to have admitting privileges at a hospital within 30 miles of where any abortion is performed,” among other changes. Act 620 is an example of a “targeted regulation of abortion providers,” or TRAP law, legislation expressly crafted to impose unnecessary regulations on clinics and physicians providing abortion care in an effort to curtail or cease their ability to operate.
The District Court found that this evidence established that the regulations placed an undue burden on the right to an abortion. It actually spent eighteen months monitoring four plaintiff doctors’ attempt to gain admitting privileges. Thirteen hospitals in total in those eighteen months denied privileges to the plaintiffs. The District Court struck down the law as unconstitutional under Roe v. Wade and its progeny. On appeal, in a 2-1 vote, the Fifth Circuit Court of Appeals, reversed the District Court saying it disagreed with its factual findings and the impact it would have on women’s healthcare. That lead to SCOTUS taking up the case.
Opinion Of Justice Breyer, sigend onto by Justices Ginsurg, Kagan, & Sotomayor
Justice Breyer noted the relevant factual findings of the District Court after a six day bench trial. Generally, that abortion in Louisiana has been a very safe procedure; that this law serves no legitimate benefit to the State other than serving as an obstacle to abortion; that 10,000 women annually in Louisiana get an abortion from five clinics in the whole State serviced by six doctors; that this law already forced the closure of two of those clinics and the retirement of one of those six doctors; because of the difficulty of getting the privileges the law was likely to reduce the number of those clinics to two, possibly even one and to reduce the number of doctors to only one.
With these stark facts in place, Justice Breyer first had to deal with a procedural argument raised by the State: whether the doctors had legal standing to contest the law since they were abortion providers and not abortion recipients. The State raised this issue for the first time before SCOTUS so Breyer held that they had waived it. He ruled that even if the State hadn’t waived it, the doctors could still bring the challenge on behalf of their patients since the law affected their conduct as well. he noted that this was the case in other abortion cases and in cases involving a challenge to a law forbidding sale of alcohol to minors brought by a convenience store owners.
Having dealt with that hurdle, Breyer pointed out the great deference normally given to trial court’s findings of fact. He wrote the decision in WWH, and made clear that he saw no reason why this case was any different:
“In Whole Woman’s Health, we quoted Planned Parenthood v. Casey
in explaining that “‘a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” We added that “ ‘[u]nnecessary health regulations’” impose an unconstitutional “‘undue burden’” if they have “‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.’”
Because the trial court found that the law presented a “substantial obstacle” to abortion, it was unconstitutional. He summed it up neatly by saying “This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional.”
Chief Justice Roberts Concurs
Roberts actually would have given the case even shorter shrift than the plurality opinion. First he said that under Casey, the re was no need for the Court to weigh the benefits of the law against the burdens imposed by the law. If the trial court found that the law placed a “substantial obstacle” to abortion and if that finding was not “clearly erroneous” then it should be upheld and the law struck down.
Even though he voted in the minority in WWH, he stated that it was decided just four years ago and it involved a nearly identical statute with similar results regarding abortion obstacles. That meant the Court was bound to follow it, like it or not:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.
This should be comforting language to pro-choice supporters. It means that if the Court maintains its current balance these TRAP laws will die on the vine and Roe is relatively safe. But the next President is likely to appoint one or two judges to the high court within the next four years so the Court’s composition could easily change.
Justice Thomas’ Dissent
Thomas spends most of his opinion saying that the plaintiff’s lack of standing should have ended the inquiry:
Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction. As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own. Under a proper understanding of Article III, these plaintiffs lack standing to invoke our jurisdiction.
But that would not be enough for Thomas. He needed to make clear where he stood on abortion, lest anyone had any doubt:
But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive
due process, McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment). As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.
He adds that it is “farcical” to believe that the 14th Amendment, which was ratified in 1868, protects abortion, when nearly all the States had laws against abortion in 1868. He states simply at the end of his opinion, that Roe should be overruled.
Justice Alito’s dissent, joined in part by Justices Thomas, Gorsuch and Kavanaugh
Justice Alito says that the Casey test of “substantial obstacle” is all that matters and that both this case and WWH are wrong in applying a balancing test between the obstacles and the benefits of the law. He says that on this he agrees with Roberts so he can’t understand why Roberts is so bound to WWH as precedent since he acknowledged that at least part of it was dead wrong.
While he cites what he believes is lack of sufficient and sincere effort on the part of the plaintiffs to secure privileges, he says the case should be sent back down to the trial court to analyze the facts under the Casey standard alone. He adds that he also agrees that only abortion seekers and not abortion providers have standing to challenge these laws. So on remand, he would suggest that the trial court allow the plaintiffs to amend their complaint to add an abortion seeker as a party.
Justice Gorsuch’s Dissent
Gorsuch felt the Court gave insufficient deference to the State Legislature which conducted hearings and took testimony and even considered the law’s burden on abortion seekers into account before passing the law. He also agrees that the doctors lacked standing to bring the law. Finally, he states that in Casey the standard was whether unnecessary health regulations imposed as substantial obstacle. Here, there was sufficient evidence in the record that the law was not unnecessary and no evidence that the court considered whether it was unnecessary. He said that in reaching its conclusion today, the Court abandoned man of its time-honored principles:
To arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.
Justice Kavanaugh’s Dissent
While Kavanaugh agrees with most of Alito’s opinion, he wrote a brief one pager of his own to say he feels that there was not enough evidence in the record of the providers’ efforts to comply with the law. He would have remanded the matter back to the trial court for more fact-finding and to consider the standing argument.
The case shows the highly politicized nature of the abortion rights issue and the Court itself. Five justices (Roberts, Alito, Gorsuch, Thomas and Kavanaugh) feel that the “cost-benefit” analysis in WWH is wrong and that the Casey “undue burden” or “substantial obstacle” case controls. A different five (Breyer, Kagan, Ginsburg, Sotomayor and Roberts) feel the Louisiana law like the Texas law in WWH was a substantial burden on the right to an abortion. Rarely has a Supreme Court been this divided and politicized. The next justice’s retirement and their next replacement could have a significant shift in the way the Court sees abortion and a number of other significant legal challenges. For now though, this case was a good stop-gap measure on TRAP laws designed to limit access to abortion. The case showcases the importance of who sits not just on the high court but in your State legislature.
Read the full decision here: https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf
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