Everything the Supreme Court has not yet ruled on comes out
today or tomorrow, since their end of term is the end of June.
It’s the divisive cases that get the attention. Today’s is
an abortion case: June Medical Services v. Russo. Russo is the Interim
Secretary of the Louisiana Department of Health, so we could call it June
Medical Services v. Louisiana Dept. of Health.
The case is very similar, according to the plurality (not
majority) opinion, to the case from Texas in Whole Woman’s Health v.
Hellerstedt. The essence is that each state legislated a law requiring doctors
at abortion services to have admitting privileges at a nearby hospital, for the
sake of women’s health.
That part of the Texas law was overturned in 2016, based on
the possibility that too many abortion facilities would close, which, using the
Casey standard (Planned Parenthood v. Casey in 1992), was deemed
to have placed an undue burden on women seeking abortions.
Justice Roberts dissented in that case. But, now that it has
been precedent for a whole four years, he concurs with the plurality (winning) opinion
because of stare decisis:
I joined the dissent in Whole Woman’s Health and
continue to believe that the case was wrongly decided. The question today
however is not whether Whole Woman’s Health was right or wrong, but
whether to adhere to it in deciding the present case.
 |
| Chief Justice John Roberts image: Leah Millis/Associated Press, found here |
The dissents explain his error, but it’s notable that, of
the most controversial cases this session, he as sided with the conservatives
only once—on the Seila Law decision, splitting with constitutional
textualism on Bostock, DACA, and now June Medical Services.
Because of personal interest?
I wrote several times on the Whole Woman’s Health
case, since it was pertinent here in Texas.
·
Texas Abortion Ruling (November 1, 2013)
·
About That Wrong Abortion Ruling (June 30, 2016)
Here’s some background on the Texas case, from my 2016
piece, which applies also to the Louisiana case:
It was a reaction to the Gosnell case, in which an abortion
clinic was filthy, grisly, and engaged in late-term and post-birth abortions
(i.e., murder of newborns). There were two basic requirements to make sure
Gosnell-like conditions wouldn’t risk the lives of the women receiving
abortions. One was that clinics would be required to have doctors with
admitting privileges at a relatively nearby hospital (the miles were far enough
to offer flexibility in all cases). The other was that the facilities would
have to meet the same standards as other ambulatory surgical centers.
So let’s be clear: the abortion industry fought all the way
to the Supreme Court to avoid securing basic health care for women.
Both states faced similar infractions in their states. Louisiana,
however, wrote the legislation carefully considering the requirements the Court
decided to make law following the Texas case. While the evidence below was
dismissed by the plurality, Justice Gorsuch, in pointing out why legislatures
are better suited to deciding these things, shares with us some of what the Louisiana
legislature heard:
The legislature heard, too, from affected women and emergency
room physicians about clinic doctors’ record of abandoning their patients. One
woman testified that, while she was hemorrhaging, her abortion provider told
her, “‘You’re on your own. Get out.’” Eventually, the woman went to a hospital
where an emergency room physician removed fetal body parts that the abortion
provider had left in her body. Another patient who complained of severe pain
following her abortion was told simply to go home and lie down. When she
decided for herself to go to the emergency room, physicians discovered a tear
in her uterus and a large hematoma containing a fetal head. The woman required
an emergency hysterectomy. In another case, a clinic physician allowed a
patient to bleed for three hours, yet a clinic employee testified that the
physician would not let her call 911 because of possible media involvement. In
the end, the employee called anyway and emergency room personnel discovered
that the woman had a perforated uterus and a needed a hysterectomy. A different
physician explained that she routinely treats abortion complications in the
emergency room when the physician who performed the abortion lacks admitting
privileges. In her experience, that situation “puts a woman’s health at an
unnecessary, unacceptable risk that results from a delay of care… and a lack of
continuity of care.”
The dissents agree on this: the plaintiffs lack standing. (The
dissents, by the way, are all written singularly, although Justice Kavanaugh concurs
with most of Justice Alito’s dissent.) The law is in place to protect the
health of women who seek abortions—that is the state’s interest. If there is an
undue burden placed on women in order to accomplish that interest, then those
women are the damaged party and entitled to be plaintiffs against the state.
But there are no such women. Nor were there, I might add, in Texas.
This is a third-party complaint—from abortion providers,
whose interest is in avoiding regulation on them that could cost them money or
inconvenience.
Justice Gorsuch, in his dissent, points out,
The plaintiffs before us are abortion providers. They do not
claim a constitutional right to perform that procedure, and no one on the Court
contends they hold such a right. Instead, the abortion providers before us seek
only to assert the constitutional rights of an undefined, unnamed, indeed
unknown, group of women who they hope will be their patients in the future.
The Court’s granting of standing in these circumstances is
extraordinary in its wrongness. Justice Alito, in his dissent, does not mince
words about the political reason:
And the idea that a regulated party can invoke the right of a
third party for the purpose of attacking legislation enacted to protect the
third party is stunning. Given the apparent conflict of interest, that concept
would be rejected out of hand in a case not involving abortion.
There are three Louisiana abortion providers in the suit,
claiming to be the only providers available, comprising six doctors. And yet,
even as the suit was underway before the Court, two additional providers made
themselves known—but their existence was ignored in the plurality’s ruling on
the case.
The doctors at these clinics were required to get admitting
privileges at nearby hospitals. They claimed they made an effort but couldn’t.
 |
| Figure 1 from the SCOTUS ruling, page 32. The numbers in parentheses are the estimation of abortions done by that abortion doctor annually. |
As Justice Alito points out in his dissent, the plurality
depended on the testimony of people who had an interest in not getting privileges:
[T]he factual finding on which the plurality and THE CHIEF
JUSTICE rely—that the Louisiana law would drastically reduce access to abortion
in the State—depends on the District Court’s finding that the doctors in
question exercised “good faith” in their quest for privileges, but that test is
woefully deficient….
[I]t primarily rests on the anecdotal testimony of June
Medical’s administrator. Neither the plurality nor THE CHIEF JUSTICE explains
why it should be accepted….
[T]he doctors had everything to lose and nothing to gain by
obtaining privileges….
If these doctors had secured privileges, that would have tended
to defeat the lawsuit….
[T]hey had an incentive to do as little as they thought the
District Court would demand, not as much as they would if they stood to benefit
from success.
I notice in the Texas case as well, the determination wasn’t
on whether the law placed an undue burden on women, but on whether it placed a
burden on abortion providers, who would then of their own volition stop
providing services. The law didn’t shut down the clinics; it required an
improved standard, which the providers could choose to meet or not. It they chose
not to, then was it incumbent on the state to go out and help recruit providers
who would meet the standard? That seems ludicrous. And yet, here we are.
The Whole Woman’s Health case added a burden on
states to do some kind of balancing act that was not required in Casey. Justice
Alito suggests,
The Court should remand this case for a new trial under the
correct legal standards. The District Court should apply Casey’s
“substantial obstacle” test, not the Whole Woman’s Health balancing
test. And it should require those challenging Act 620 to demonstrate that the
doctors who lack admitting privileges attempted to obtain them with the same
zeal they would have exhibited if the Act were in effect and they stood to lose
by failing in those efforts.
To summarize,
·
The case should never have come forward, because
the plaintiffs lack standing.
·
The dependence on the anomalous Whole Women’s
Health balancing standard was incorrect, as it overrode the longer-standing
Casey test.
·
The case overlooked the benefits of the law for
women’s health, a state interest.
·
The case assumed, without question, as fact that
the doctors in question could not meet the requirements, and therefore no
doctor could be found who could.
There are more. But what fascinated me was Justice Thomas’s
dissent, which was very frank:
The plurality and THE CHIEF JUSTICE ultimately cast aside
this jurisdictional barrier to conclude that Louisiana’s law is
unconstitutional under our precedents. But those decisions created the right to
abortion out of whole cloth, without a shred of support from the Constitution’s
text. Our abortion precedents are grievously wrong and should be overruled.
Because we have neither jurisdiction nor constitutional authority to declare
Louisiana’s duly enacted law unconstitutional, I respectfully dissent.
And,
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.
As the origins of this jurisprudence readily demonstrate, the putative right to
abortion is a creation that should be undone.
He’s not finished. He lays out a pertinent history lesson
for us—and for his apparently ignorant colleagues in the plurality:
The Court first conceived a free-floating constitutional right
to privacy in Griswold v. Connecticut (1965). In that case, the Court
declared unconstitutional a state law prohibiting the use of contraceptives,
finding that it violated a married couple’s “right of privacy.” The Court explained
that this right could be found in the “penumbras” of five different Amendments
to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Rather than
explain what free speech or the quartering of troops had to do with
contraception, the Court simply declared that these rights had created “zones
of privacy” with their “penumbras,” which were “formed by emanations from those
guarantees that help give them life and substance.” This reasoning is as
mystifying as it is baseless….
Just eight years later, the Court utilized its newfound power
in Roe v. Wade (1973). There, the Court struck down a Texas law
restricting abortion as a violation of a woman’s constitutional “right of
privacy,” which it grounded in the “concept of personal liberty” purportedly protected
by the Due Process Clause of the Fourteenth Amendment. The Court began its
legal analysis by openly acknowledging that the Constitution’s text does not
“mention any right of privacy.” The Court nevertheless concluded that it need
not bother with our founding document’s text, because the Court’s prior
decisions—chief among them Griswold—had already divined such a right
from constitutional penumbras. Without any legal explanation, the Court simply concluded
that this unwritten right to privacy was “broad enough to encompass a woman’s
[abortion] decision.”…
In 1868, when the Fourteenth Amendment was ratified, a
majority of the States and numerous Territories had laws on the books that
limited (and in many cases nearly prohibited) abortion. It would no doubt shock
the public at that time to learn that one of the new constitutional Amendments
contained hidden within the interstices of its text a right to abortion. The
fact that it took this Court over a century to find that right all but proves
that it was more than hidden—it simply was not (and is not) there.
You go, Justice Thomas!
 |
| Justice Clarence Thomas image: J. Scott Applewhite/AP Photo, found here |
In the Texas platform this year, our district is proposing a
plank to simply outlaw abortion, in one single bill. No skirting around limits
that, on their face, concede the “right” to murder some innocent life under
some circumstances. We’ll see how that goes at the convention. But it’s time to
stop compromising with evil and boldly go where we should have gone all along.
I’ve already written too much. But I want to add with this
opening statement from Justice Gorsuch’s dissent:
The judicial power is constrained by an array of rules. Rules
about the deference due the legislative process, the standing of the parties
before us, the use of facial challenges to invalidate democratically enacted
statutes, and the award of prospective relief. Still more rules seek to ensure
that any legal tests judges may devise are capable of neutral and principled
administration. Individually, these rules may seem prosaic. But, collectively,
they help keep us in our constitutionally assigned lane, sure that we are in
the business of saying what the law is, not what we wish it to be.
Today’s decision doesn’t just overlook one of these rules. It
overlooks one after another. And it does so in a case touching on one of the
most controversial topics in contemporary politics and law, exactly the context
where this Court should be leaning most heavily on the rules of the judicial
process. In truth, Roe v. Wade (1973), is not even at issue here. The real
question we face concerns our willingness to follow the traditional constraints
of the judicial process when a case touching on abortion enters the courtroom.
