//  2/24/20  //  Commentary

Note: This post is part of a series of posts discussing the upcoming argument in June Medical Services.

On Wednesday, March 4, the Supreme Court will hear oral arguments in abortion cases that could signal a dramatic lessening in the constitutional protection for women’s reproductive autonomy.  In June Medical Services LLC v. Russo, the Court will consider a challenge to a Louisiana law that requires a doctor performing an abortion to have admitting privilege at a hospital within 30 miles. In the consolidated case, Russo v. June Medical Services LLC, the Court will consider whether health care providers have standing to raise the claims of their patients in challenging laws restricting abortions.

These should be easy cases for the Supreme Court based on precedents which already have resolved these issues.  I fear, though, that there are now five justices to allow much greater restrictions on abortions and ultimately to overrule Roe v. Wade.

Just four years ago, in 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court, in a 5-3 decision, declared unconstitutional a Texas law that required doctors performing abortions to have admitting privileges at a hospital within 30 miles.  In fact, the Louisiana law now before the Court was modeled after the Texas statute.

Justice Breyer wrote the opinion for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  The Court stressed that in deciding whether a law imposes an undue burden on abortion it is for the judiciary to balance the justifications for the restrictions against their effects on the ability of women to have access to abortions.   The Court concluded that the Texas law would greatly limit the ability of women in Texas to have access to abortions, without any evidence that the restrictions would protect women’s health.  

The Court explained that few women require hospitalization after an abortion and if it is needed, doctors at the hospital would provide treatment.  At the same time, the Court explained that the effect of the Texas law would be to close many of the facilities in the state where abortions are performed.

As for the other issue now before the Court concerning standing, in Singleton v. Wulff, in 1976, two physicians were accorded standing to challenge a state statute that prohibited the use of state Medicaid benefits to pay for nontherapeutic abortions (abortions that were not necessary to protect the health or life of the mother). The Court observed that the statute injured doctors because it denied them payments for particular medical services. Moreover, the Court emphasized the closeness of the doctors’ relationship to the patient and that “the constitutionally protected abortion decision is one in which the physician is intimately involved.” The Court concluded that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.”

The Court should follow these precedents, uphold standing for health providers to challenge restrictions on abortion and follow Whole Woman’s Health to strike down the Louisiana law.  Nothing has changed that would justify abandoning these precedents.

I expect that there are four votes for this: Ginsburg, Breyer, Sotomayor, and Kagan.  But is there a fifth without Anthony Kennedy?  Justice Alito wrote a dissent in Whole Woman’s Health, joined by Chief Justice Roberts and Justice Thomas.  None of those three justices ever have voted to strike down any restriction on abortion.  Might either Justice Gorsuch or Justice Kavanaugh, both of whom are assumed to be foes of abortion rights, be a fifth vote to strike down the Louisiana law?

The Court could avoid the abortion question and narrow the law concerning third party standing, holding that health providers cannot represent their patients and challenge laws restricting access to abortion.  This argument, though, was not raised in the trial court or at any time before Louisiana filed a cert petition asking the Court to take it up, and in fact the state conceded that the providers had standing.  To deny standing the Court would have to conclude that this is a jurisdictional issue and cannot be waived.  It would be a major change in the law for the Court to restrict third party standing in this way. The Court often has allowed third party standing based on a sufficient identity of interests between the plaintiff and a third party.  For example, in Craig v. Boren, the Court held that bartenders could represent the interests of their male customers in challenging an Oklahoma law that allowed women to buy low alcohol beer at 18 while men could not do so until age 21.

If the Court does not overrule the precedent with regard to standing, it will have to decide whether to overrule Whole Women’s Health.  This is the first abortion case to be argued in front of Justices Gorsuch and Kavanaugh. Everything known about them from their writings before they joined the Supreme Court suggests they are very likely to uphold restrictions on abortion.

If the Court overrules Whole Woman’s Health, it would be a clear signal of a willingness to uphold the many laws that have been adopted that are referred to as “targeted restrictions of abortion providers.” States have adopted hundreds of new laws, some of which would effectively end abortions.  Lower courts struck down many of these laws after Whole Woman’s Health,and overruling that decision would indicate the Court is newly willing to permit such restrictions.

The Court also conceivably could use this as the vehicle for overruling Roe v. Wadeand ending constitutional protection for abortion rights.   Many believe that there are five votes to do so with Gorsuch and Kavanaugh joining Roberts, Thomas, and Alito.  But most think that John Roberts would prefer the Court to move incrementally and would be unlikely to go so far as to use this case to end all abortion rights.

Roe v. Wade, and more recently Whole Woman’s Health v. Hellerstedt, were rightly decided.   It should be left to each woman, and not the government, to decide whether to continue or to terminate a pregnancy.  States should not be able to impose restrictions on abortion that do nothing to protect a woman’s health and serve no purpose except to limit the availability of abortions.  

One would hope that conservative justices who preach judicial restraint would have respect for precedent.  One would hope that conservative justices would want to keep limit government power over the intimate aspects of a woman’s life.  But I am not optimistic and fear June Medical Center v. Russo is going to end with the five conservative justices allowing severe restrictions on abortion, such as have not been upheld since Roe, and permitting the government to make it much more difficult for women to exercise their fundamental constitutional right of reproductive autonomy. 

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