Rewire.News journalist Jessica Mason Pieklo was inside the Supreme Court for today’s arguments in June Medical Services v. Russo.
In this episode of the “Boom! Lawyered” podcast recorded March 4 immediately following oral arguments in the case, Pieklo joins co-host Imani Gandy to bring the rest of us up to speed on the most important and surprising moments of the day.
Read the episode transcript here.
Below, we break down what you’ll hear.
Oral arguments in the case of June Medical Services v. Russo lasted one hour.
Arguing on behalf of abortion providers was Julie Rikelman from the Center for Reproductive Rights.
Arguing to uphold the restrictive Louisiana law was Louisiana solicitor general Elizabeth Murrill.
The law in question is Act 620, a Louisiana admitting privileges law that requires doctors who perform abortions to have hospital admitting privileges within 30 miles of the clinic they perform their abortions. The law is identical to Whole Woman’s Health v. Hellerstedt, based out of Texas, which was ultimately struck down as an undue burden by the Supreme Court four years ago.
The arguments boiled down to two questions:
The first: Is Act 620 unconstitutional like the identical version, Whole Woman’s Health v. Hellerstedt?
And the second: Do abortion providers have legal standing to bring certain types of claims on behalf of their patients?
Gandy calls this issue of standing “the sleeper issue in the case.”
If we get a ruling that providers don’t have standing to sue on behalf of their patients, it will significantly hamper the ability of clinics and doctors to challenge unconstitutional restrictions.
How Will the Court Rule on This Issue of Standing?
The court is sharply divided on this question.
“The hardcore conservatives really want to gut third-party standing,” Pieklo said.
In fact, it was the very first question Justice Samuel Alito asked Rikelman in her case.
“For Alito to ask that of the providers initially, says that this is the issue that he’s really focused on,” Pieklo said. “It’s not just that, well, pregnant people should be able to bring their own claims. They can bring their own claims. Nobody’s saying that. It’s the question of is there a conflict of interest that providers have with patients to bring those claims?”
Alito brought these “bad-faith” concerns up again and again.
Chief Justice John Roberts, often considered a deciding vote, didn’t ask a single question about legal standing.
“That makes me nervous,” said Pieklo. “I would have liked to have some better sense of where the chief justice’s thinking was on this.”
Gandy on Roberts’ silence on this topic: “That could mean that he’s just decided we’re just going to go with precedent.
But What About Legal Precedent?
In her opening remarks to the court, Julie Rikelman said that this is about precedent—about whether or not the justices are going to respect their own decision from four years ago.
“If the chief justice is going to respect precedent, then he needs to both find that abortion providers have standing and that Whole Woman’s Health disposes of this case and that Act 620 is unconstitutional,” said Pieklo.
Of course, that’s the best-case scenario of how this decision could go.
How Did the Arguments Differentiate Between June Medical Services and Whole Woman’s Health?
Whole Woman’s Health determined that the condition of admitting privileges places an “undue burden” on those seeking an abortion.
Chief Justice Roberts’ position today was that Whole Woman’s Health set out a standard that is fact-intensive—but that ultimately is a state-by-state inquiry. This means that courts are required to examine the benefits of a particular admitting privileges law in each particular state, as well as the burdens of its implementation.
In response, Pieklo recounted, “The Center for Reproductive Rights said, ‘Nonsense. That’s actually not true. And here’s all the evidence to rebut that.’ But … it just strikes me that we’re at the Supreme Court where we’re supposed to be arguing principles of law, of broad applicability here. We’re not supposed to be arguing details in the record. That is the job of a trial court. And so this is really a case about the appropriate separation of powers between the appellate courts and the lower courts and what the court is going to do with that too.”
At one point, Justice Stephen Breyer asked the Louisiana solicitor general to identify specifically in the record her strongest case that the district court got it wrong.
She couldn’t answer that question—making it clear that “folks defending these laws were arguing in a bad faith position … and playing fast and loose with the facts,” explained Pieklo.
Pieklo also got the sense that Justice Elena Kagan was frustrated by the fact that the case even made it to the Supreme Court, in light of the four-year precedent of Whole Woman’s Health.
Pieklo described her read on Kagan:
“She was really honing in on the findings that the Supreme Court itself made in Whole Woman’s Health, as to the benefits and burdens of admitting privileges generally. I think that is 100% evidence that she is having a conversation with Roberts there to say, ‘Look, we have this rule and I get that you don’t like it, but the rule of law matters. It matters. And in this decision we said that there are no medical benefits and if there are no medical benefits then there can be no compelling state interest in admitting privileges law generally. Case closed.’ … I do think she was really focusing a very pragmatic approach in questioning,”
The Trump Administration Sends a Message About Anti-Abortion Priorities
This court decision is a fight between abortion providers and the state of Louisiana. As such, the Trump administration is not a party to this lawsuit.
And yet, the Department of Justice petitioned the Supreme Court for some time during oral arguments and was ultimately granted some of the state of Louisiana’s time.
Deputy solicitor general John Wall delivered the arguments on behalf of the Trump administration.
“What having Jeff Wall there does is send a signal, which is that the Department of Justice is exceedingly interested in abortion rights jurisprudence and litigation,” said Pieklo.
She continued: “The Trump administration, the federal government, is going out of its way … to say one of our top priorities is whenever possible, arguing for a rollback of federal constitutional rights. … Jeff Wall didn’t do anything in these oral arguments that the solicitor general from the state of Louisiana couldn’t do herself except be a voice of the federal government arguing on behalf of these abortion restrictions.”