//  9/16/19  //  In-Depth Analysis

June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. In February 2019, split five to four, the Supreme Court blocked this law from going into effect. That order suggests the Court is likely to grant review. This symposium addresses both the merits of the case and its broader context.

June Medical Services v. Gee is the Supreme Court’s next opportunity to weigh in on women’s constitutional right to decide to end their pregnancies. While the Court has thus far managed to avoid having full arguments on any abortion case since Justices Gorsuch and Kavanaugh joined the Court, it may not find a way to avoid doing so in June Medical.

June Medical involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions.  In Whole Woman’s Health v. Hellerstedt, the Supreme Court invalidated a Texas law that would have required abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. So what is good for the goose should be good for the gander: If the Texas law was invalid, then so is the Louisiana law.

Or so one might think. Whole Woman’s Health was decided in 2016, when Justice Kennedy was still on the Court. He joined the four more progressive Justices to form a 5-3 majority to invalidate the Texas law. Things are a bit different now. And the fact that there are now serious questions about whether the Court will uphold the exact same law it invalidated just three years ago is an important indication about the state of reproductive rights and justice in the Supreme Court.

In June Medical, a district court found Louisiana’s law invalid, citing the lack of any medical benefit offered by the law together with the burdens the law imposed. Thus far, only one doctor who performs abortions in Louisiana has been able to obtain admitting privileges, and that is only because of the doctor’s work as an OBGYN. (Admitting privileges often require a certain number of hospital admissions, and so doctors who perform only abortions often can’t obtain admitting privileges, since they do not admit enough patients to obtain the privileges.)

But the U.S. Court of Appeals for the Fifth Circuit vacated the district court’s injunction against the Louisiana law. The court of appeals admitted that the state did not have any evidence that the law would help any women. But, it wrote, the Louisiana law imposed less severe burdens than the Texas law, and maybe, just maybe, it wrote, some other Louisiana doctors could eventually obtain admitting privileges. The Court also claimed that Whole Woman’s Health v. Hellerstedt did not resolve the constitutionality of the Louisiana law since Whole Woman’s Health had engaged in a “fact-intensive” inquiry, and Louisiana was entitled to relitigate those facts.

The clinic then sought a stay at the Supreme Court. Allowing the law to go into effect could winnow down the number of abortion providers to one, which would probably have the effect of shuttering clinics without a doctor to perform abortions. And a decision that ultimately invalidated the law after the state enforced the law for some initial period might not result in the clinics being reopened.

By a 5-4 vote, the Court ultimately voted to stay the court of appeals decision, thus allowing the district court’s injunction against the Louisiana law to remain in effect, at least until the Court decides whether to grant certiorari in the case and possibly issue a decision on the constitutionality of the Louisiana law. Justice Kavanaugh issued an opinion explaining his vote to allow the Louisiana law to go into effect; I’ve written previously about that opinion here and in the Washington Post.

The stay votes suggest the Court is likely to take the case.  The Court has tried to avoid setting for argument any of the abortion cases that have recently made their way to the Court. It issued a summary disposition in Box v. Planned Parenthood, and it denied certiorari in the Medicaid right of action cases as well as a case involving an Alabama restriction on abortion.

The Court could well (and should) issue a summary disposition here, reversing the court of appeals, given that the Court declared the law at issue in June Medical unconstitutional just three years ago. What the Court ultimately does in June Medical will tell us a lot about what the Court is likely to do in cases on abortion over the next few years—and perhaps more.

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