A collective sigh of relief could be heard among abortion rights advocates yesterday when the U.S. Supreme Court announced its much-anticipated decision in June Medical Services LLC v. Russo. A narrow, 5-4 majority of the Court struck down a Louisiana admitting privileges law that would have reduced the number of abortion clinics in the state to one, and limited the capacity of abortion providers by 55-70 percent.
The Louisiana law at issue in June Medical was a virtual replica of a Texas admitting privileges law struck down by the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt nearly four years ago to the day.
Many legal scholars and court-watchers—including me—predicted that the second time might be a charm for opponents of abortion rights, as June Medical presented Trump’s two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, with their first chance to weigh in on abortion rights. Instead, Justice Roberts provided the swing vote, and abortion rights have survived this latest assault by the slimmest of margins.
Compared to what might have been, June Medical is a major win. The four liberal Justices of the Court affirmed and applied the precedent from Whole Woman’s Health v. Hellerstedt. They combed through the record from the Louisiana District Court and found the admitting privileges law failed to protect women’s health and created a substantial obstacle to women—just like its Texas twin. Chief Justice Roberts concurred in the judgment.
With the admitting privileges law gone, all three remaining Louisiana abortion clinics can continue serving the 10,000 women in that state who seek abortions each year. Other states with admitting privilege laws—some of which are temporarily blocked by courts—are on notice that these laws will face steep hurdles.
Importantly, five of the Justices, including Roberts, put to rest a dangerous 11th hour claim by Louisiana that abortion providers and clinics should never be able to even challenge abortion regulations in court on behalf of their patients.
Why Was June Medical‘s Victory “Precarious”?
Lurking beneath the surface of June Medical Services are five votes poised to severely restrict abortion rights if given the chance. Abortion rights advocates did not “flip” Chief Justice Roberts.
Instead, Chief Justice Roberts penned his own opinion, a concurrence in which he agreed with little more than the conclusion that the Louisiana law must fail. Roberts made himself quite clear—he had no choice but to concur in the outcome of this case for the sole reason that the Court had already decided the “nearly identical” case when it struck down the Texas admitting privileges law in Whole Woman’s Health.
In Roberts’s view, the Court’s respect for precedent—a legal principle known as “stare decisis”—demanded the same result under the same set of facts.
But the guardrails that constrained Roberts in this case likely won’t be present when the next abortion regulation winds its way to the Supreme Court. Roberts reminds us that he, “joined the dissent in Whole Woman’s Health and continue[s] to believe that case was wrongly decided.” He provides readers with a detailed legal framework for overruling Whole Woman’s Health and limiting abortion rights on a different set of facts. If you add Roberts to the dissenters, that makes five justices who would narrow abortion rights if given the right case.
And for those wondering where the newly-minted Justices Gorsuch and Kavanaugh stand on abortion, we’ve got our answer and President Trump should be pleased. Justices Kavanaugh and Gorsuch joined Justice Alito in a dissent that flirted with the idea of “reexamining” Planned Parenthood v. Casey, performed factual jujitsu to conclude that the admitting privileges law protects women, and entered the world of make-believe to distinguish this case from Whole Woman’s Health.
Justice Gorsuch went even further. He also joined a portion of Alito’s dissent that rejected the right of abortion providers to challenge abortion regulations—a move that would force patients to bring suit themselves.
Gorsuch then penned a separate dissent describing in gory detail the incredibly rare potential complications from abortion, and inviting yet a third chance to revisit this same admitting privileges law if even the tiniest conditions in the state were to evolve over time.
What Now?
While abortion advocates have reason to be relieved today, abortion opponents will be undeterred.
The Center for Reproductive Rights, which represented the providers in this case, is currently challenging no fewer than 30 abortion restrictions in federal courts throughout the U.S. These include gestational abortion bans that seek to prohibit all abortions after a particular point in pregnancy, waiting period laws (including a 72-hour waiting period law in Louisiana that is currently blocked by a court), procedural bans that seek to limit various methods of performing abortions, and other TRAP laws (like ambulatory surgical center requirements).
After yesterday’s fractured opinion, legislatures will continue passing ever-more restrictive laws, and states will press hard to get them back in front of this unsettled Supreme Court.
For those of us who value the right to abortion, now is the time to act. Justice Ginsburg is 87, and Justice Breyer is 81. If President Trump is able to appoint another justice to the Court, reproductive rights will likely crumble.
Federal district and appeals court appointments are also vitally important. Trump has already appointed 200 judges to the federal bench and we can’t afford any more. The presidential and Senate races will determine the future of our federal judiciary, and they are the path to passage of the Women’s Health Protection Act.
June Medical Services presented the Court with a second bite at the apple. Louisiana couldn’t get Roberts to bite this time. But there’s a lot of the apples in the tree, and it only takes one.
