I’m pleased to announce that High School SCOTUS has a new contributor!
Noelle McDowell is a rising junior at Rockbridge Academy in Annapolis, Maryland. When Noelle was eleven, she told her parents that she no longer wanted to be the President of the United States. Nope. She wanted to be a Supreme Court Justice. “The President doesn’t even do anything — it’s the Supreme Court that does all the cool stuff!” Noelle loves competing on her school’s mock trial team, leading her school’s Students for Life club, volunteering with her church’s youth group, and belting out High School Musical songs just about whenever.
Opinion Analysis: June Medical Services, LLC v. Russo
by Noelle McDowell
Since oral arguments were heard on March 4, 2020, the nation has waited in great suspense for the Supreme Court’s decision on June Medical Services, LLC v. Russo, the highest-profile abortion case in years. June Medical Services marks the first abortion-related case to be heard by Justices Neil Gorsuch and Brett Kavanaugh, who are both considered pro-life. Their appoinments gave the court the Court a conservative majority, frightening abortion rights supporters and raising the hopes of pro-life advocates that the Supreme Court might go so far as to overturn Roe v. Wade.
No such radical decision was made on Monday. By a 5-4 decision, the Court ruled that the contested Louisiana law creating stricter abortion clinic requirements created an “undue burden” on abortion access and was therefore unconstitutional. Justices Breyer, Kagan, Sotomayor, and Ginsburg, and Roberts formed the majority that struck down the law. Justices Alito, Gorsuch, Kavanaugh and Thomas dissented in favor of the law.
As the swing vote, Chief Justice Roberts’ vote was the most significant in this case, and his concurring opinion was fairly surprising. Roberts admitted that although he disagreed with the court’s decision, he decided to vote for it anyways.
Why would he do that?
Chief Justice Roberts is generally considered a conservative on issues of race and executive power, but he sometimes votes against his beliefs in order to uphold the reputation and precedent of the Supreme Court. June Medical was one such case. Specifically, Roberts sided with the majority in order to uphold the Supreme Court’s precedent in Whole Woman’s Health v. Hellerstedt (2016).
Whole Woman’s Health, a case arising from Texas, is nearly indistinguishable from June Medical. In both cases, abortion providers challenged a state law that imposed strict requirements for their facilities.
In July of 2014, the Texas House of Representatives passed a law (Texas HB 2) that required abortion providers in the state to have “admitting privileges” at a hospital within a 30-mile radius of their clinic. Admitting privileges are rights that hospitals grant to doctors allowing them to admit patients to the hospital and to continue to care for them there. These privileges are meant to ensure that women receiving abortions have quick access to hospital care in emergency situations. For example, if something goes wrong with a surgical abortion and a woman is severely injured, her doctor can rush her to the hospital and coordinate her care with hospital staff.
Texas’s HB 2 also required abortion providers to meet a certain set of standards for their building, staffing, and operational procedures. In Louisiana, other types of outpatient surgical facilities and physicians were required to meet certain health and safety standards. The ‘Unsafe Abortion Protection Act’ called abortion facilites and physicians to the same standard of excellence. HB 2 states: “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted… for ambulatory surgical centers.”
In the end, HB 2 had a much greater effect than just raising abortion facility standards. Obtaining admitting privileges can be a difficult process for many doctors, and some clinics were not within the specified 30-mile radius of a hospital. Before HB 2, there were more than 40 licensced abortion facilities in Texas. Once HB 2 went into effect, the number had been cut in half, leaving only 19 abortion clinics open. If the law had not been contested, it was predicted that only 7 or 8 of these clinics would be able to meet all of the requirements and stay open.
Two of the affected abortion clinics, Whole Woman’s Health in McAllen, and Nova Health Systems in El Paso, contested the law in October of 2014. The Western District Court of Texas sided with the abortion clinics, but when their decision was appealed, the Fifth Circuit sided with Texas, allowing the law to go back into effect. Eventually, oral arguments were heard by the Supreme Court on March 2, 2016. By a 5-3 vote (Justice Antonin Scalia had died on February 13), the court ruled that the contested portions of HB 2 (namely, the admitting priviledges requirement and the surgical facility standards) were unconstitutional because they created an “undue burden” for women seeking abortions.
The “undue burden” standard was established by the Supreme Court in Planned Parenthood v. Casey (1992). According to Casey, an “undue burden” is any legal restriction that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Casey, 505 U.S. at 877). Basically, the court ruled that any provision or law that restricts one’s right to abortion without a valid legal purpose is unconstitional.
With the holding from Whole Womans’ Health v. Hellerstedt in mind, let’s move on to examine June Medical Services, LLC v. Russo. But don’t be surprised if you get a bit of deja vu.
In 2014, the Louisiana House of Representatives passed Act 620, also known as the ‘Unsafe Abortion Protection Act,’ which was modelled almost word-for-word after Texas HB 2. Act 620 similarly required abortion facility doctors to have admitting priviledges at a hospital within a 30-mile radius and raised abortion clinic standards to meet those of other hospital-grade facilities. Only one of the six abortion doctors in Louisiana were able to gain admitting privileges to a hospital before the law came into effect. The five other abortion doctors challenged Act 620.
The plaintiffs challenged the ‘Unsafe Abortion Protection Act’ in the Middle District Court of Louisiana, and the court sided with the abortion providers, ordering an injuction to prevent Act 620 from coming into effect. However, when the state appealed the decision, the Fifth Circuit overruled it, allowing Act 620 to become law on February 15, 2016. The clinics then appealed to the Supreme Court, which ordered that the courts wait for its ruling on Whole Woman’s Health and then rehear the June Medical case.
Once the Supreme Court released its opinion in Whole Woman’s Health, June Medical was re-heard at the Middle District Court of Louisiana. The judge deemed Act 620 unconstitutional, finding it an “undue burden” for Louisiana women. Then the state appealed to the Fifth Circuit, which again overturned the District’s decision, claiming that the circumstances in Louisiana were sufficiently different from those in Texas to justify ruling differently on Act 620 than the Supreme Court had on HB 2.
The plaintiffs appealed yet again, and June Medical was back at the The Supreme Court of the United States. Justice Breyer delivered the majority opinion, with the three other liberal-leaning justices joining him. Chief Justice Roberts filed his own concurring opinion. All of the dissenting justices wrote their own opinions, but Justice Alito’s opinion was at least partially joined by the other three.
Let’s start with Justice Breyer’s majority opinion. Breyer relied heavily on the precedent of Whole Woman’s Health, pointing out that Louisiana Act 620 “is almost word-for-word identical to Texas’ admitting-privileges law.” He observes that Act 620 would “result in a drastic reduction” of operating abortion clinics in Lousiana and would therefore create “substantial obstacles in the path of women seeking an abortion in Louisiana.” As 5 of the 6 previous abortion doctors would stop operating, there would be only one abortion provider left for the 10,000 women who annually seek abortions in Louisiana. However, this New Orleans doctor could only be reasonably expected to perform up to 3,000 abortions in one year, and only for early-stage pregnancies. Breyer found that these restrictions failed to meet Planned Parenthood v. Casey’s “undue burden” test because they had no legal purpose to justify the significant burdens they placed.
Chief Justice Roberts agreed that Act 620 should be struck down, but he provided completely different reasoning. Roberts made clear that he disagreed with the Supreme Court’s decision in 2016 to strike down Texas’s HB 2. Afterall, Roberts had dissented in Whole Woman’s Health and stated that he still believes that it “was wrongly decided.” Nevertheless, Roberts voted with the majority because of a legal doctrine called “stare decisis.” Stare decisis is the principle that courts ought to rule according to precedent and should therefore generally avoid overturning its older decisions. Roberts quoted the Federalist Papers for this idea, stating “[a]dherence to precedent is necessary to ‘avoid an arbitrary discretion in the courts.’ ” Roberts also quotes Justice Thurgood Marshall’s majority opinion in Vasquez v. Hillery (1986), saying that the principle of stare decisis is “the means by which this Court ensures that the law will not merely change erratically but will develop in a principled and intelligible fashion.” To abide by this doctrine, Roberts sided with the majority to uphold the court’s precedent in Whole Woman’s Health v. Hellerstedt, despite his enduring disagreement with that decision.
Justice Thomas wrote a dissenting opinion, one where he claimed that because abortion providers lack legal standing (aka, the right to sue) on behalf of their clients, their case should never have come before the Supreme Court. Thomas also argued that “[t]he Constitution does not constrain the States’ ability to regulate or even prohibit abortion.” He says that the “right to abortion” was created “without a shred of support from the Constitution’s text.” He rejects the idea that the court ought to rule according to its previous precedents, declaring that “[o]ur abortion precedents are grievously wrong and should be overruled.”
Justice Alito’s dissenting opinion was joined by Justice Gorsuch and joined in part by Justices Thomas and Kavanaugh. In it, Alito suggests that the case be sent back to the lower courts for reconsideration after a plaintiff who actually has a right to sue files the case. He also seemed to doubt that the plaintiffs had proved that “women’s access to abortions would be substantially impaired” or that abortion doctors had truly tried to gain admitting privileges before filing their complaint.
Justice Gorsuch dissented as well, asserting that Act 620’s admitting privileges requirement “would serve the public interest by protecting women’s health and safety.” He noted that “Louisiana’s abortion clinics historically have done little to ensure provider competence.” In his view, requiring doctors to gain admitting privileges would ensure that women receiving abortions are under the care of a skilled and knowledgeable physician.
Justice Kavanaugh filed a very brief dissent, in which he expressed that “additional factfinding is necessary to properly evaluate Louisiana’s law.” He agrees with Justice Alito that the plaintiff’s case does not “adequately demonstrate that the three relevant doctors…cannot obtain admitting priviledges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-priviledges law.”
After almost seven years, five trials, and four separate appeals, June Medical Services, LLC v. Russo has finally come to an end. While the decision may seem like a victory for pro-choice activists, they aren’t completely satisfied. Chief Justice Roberts’ reasoning in this case leaves his future decisions on abortion cases up in the air, thus leaving the future of abortion rights insecure. Gretchen Borchelt, the vice president for reproductive rights and health at the National Women’s Law Center, expresses her concerns in an article entitled “June Medical Services v. Russo: When a ‘win’ is not a win.” She writes, “[Robert’s opinion] argues for a system that left people seeking abortion without access to the care they need. In his concurrence, Roberts plants a flag to mark the battlegrounds for future abortion fights…. We deserved a sweeping Supreme Court decision that recognize and supports both the right to abortion and access to abortion…. This, regrettably, is not that decision.” Pro-choice representatives hope that the Supreme Court will be more decisive in the future.
Meanwhile, pro-life advocates were disspirited that the Court did not protect Louisiana women by requiring more rigorous standards for physicians and their facilities. Carol Tobias, president of National Right to Life, said on Monday: “We are extremely disappointed that the U.S. Supreme Court ruled against Louisiana’s 2014 ‘Unsafe Abortion Protection Act.’ The Supreme Court’s decision to strike down Louisiana’s law leaves women vulnerable.” Tobias goes on to say that “[p]ro-abortion groups have made it clear that they care more about their bottom line than the women they claim to serve. If the abortion industry were really concerned about women, they would want an admitting privileges requirement in order to reassure women that they are getting good care.” Pro-life advocates hope that future cases might make better steps toward protecting women and their unborn children.
Personally, I disagree with the court’s decision in June Medical for a number of reasons. When applying Casey’s “undue burden” standard, it is important to weigh both sides of the law. Yes, as Justice Breyer points out, the ‘Unsafe Abortion Protection Act’ would likely restrict abortion access in Louisiana. But that doesn’t necessarily mean that it imposes an “undue burden.” A burden, perhaps, but not an “undue” one. Where I disagree with him is his claim that “the law offers no significant health-related benefits.”
It seems only natural that if abortion facilities want to be accepted as a qualified surgical facilities, they ought to be held to the same standards that every other type of ambulatory surgical facility in Lousiana are required to meet. Ease and accessibility are no justification for improper or unsafe care.
The court’s decision also allows women to be cared for by irresponsible physicians. As mentioned previously, Justice Gorsuch noted his concern that “Louisiana’s abortion clinics historically have done little to ensure provider competence.” Sadly, the same is true across the nation. Just three months ago in my home state of Maryland, two women suffered life-threatening, horrific injuries at the hand of abortion doctor LeRoy Carhart. The first woman’s uterus had been ruptured and parts of her fetus were left inside. An anonymous witness described it as “the most horrific thing I have ever seen” (Operation Rescue). Just 9 days later, a second woman was sent by Carhart to the hospital hemorrhaging so severely that a hysterectomy was required, destroying her ability to ever bear a child again. Pro-life group “Live Action” explains that since Carhart didn’t have admitting privileges at the nearest hospital, “the emergency medical staff likely did not know the full extent of the women’s injuries.” If Carhart did have admitting privileges, it would have been his responsibility to explain what had happened and be directly involved in coordinating the woman’s care; as it was, the hospital staff were left on their own to figure out what to do.
Finally, this ruling leaves abortion doctors unaccountable for their actions. In the incident described above, Carhart’s lack of admitting privileges (and therefore, his total absence from the woman’s emergency care) meant that his name never appeared on medical records, leaving Carhart completely disconnected with the incident he had caused. In the future, other woman seeking abortions maybe never know that they are putting their lives into the hands of such an incompetent man.
For these reasons, I disagree with the plurality in June Medical Services, LLC v. Russo that Act 620 created an “undue burden.” I concur instead with Justice Gorsuch that the ‘Unsafe Abortion Protection Act’ would have “serve[d] the public interest by protecting women’s health and safety.”
