Helen Alvaré
Today, by a vote of 5 to 4, the U.S. Supreme Court struck down a Louisiana law requiring abortionists to have admitting privileges at hospitals within 30 miles of their practice. The opinion in June Medical Services v. Russo is quite fractured and legally technical. It does not bring the pro-life movement any closer to overthrowing Roe v. Wade and Planned Parenthood v. Casey; but it does not likely move us further away from that end either. More litigation to that end is still required.
In June, a plurality of Justices (Breyer, Ginsburg, Sotomayor and Kagan) voted to strike down the Louisiana law on the grounds that the burdens it imposed upon women were greater than its claimed health benefits, just like the Texas admitting-privileges law struck down in the 2016 case of Whole Woman’s Health v. Hellerstedt. Chief Justice John Roberts provided the fifth vote for the Court’s holding in a concurrence in which he disagreed with the plurality’s standard for striking the law down, but agreed that the law was unconstitutional under the standard established by the Court in the 1992 Planned Parenthood v. Casey decision.
Justices Clarence Thomas, Neil Gorsuch, Samuel Alito and Brett Kavanaugh dissented, with only Thomas using his opinion as an occasion to also declare Roe v. Wade an unprincipled decision that should be overturned.
June Medical raised several legal questions with important implications for the future of abortion law: first, whether or not abortionists have what is called “standing” to challenge laws that were enacted in order to better vet abortionists to ensure that they provide safe medical services to women. “Standing” requires that the party challenging a law has or will suffer an actual injury to a legally cognizable interest. This question is important because the vast majority of cases seeking to overturn abortion restrictions are filed by abortion doctors and clinics, not by individual women. It is also important because of the obvious conflicts of interest in cases like this one, where abortionists are seeking to quash a law that could make abortion safer for their patients.
The five justices in the majority concluded that the abortionists and abortion clinics had standing, even though abortionists do not have any sort of “right” to practice abortion that the Louisiana law burdens.
The plurality claimed that the state of Louisiana had “waived” the problem of third-party standing in the two lower federal courts that had heard the case. But they also noted that abortionists had previously generally been permitted to sue to defeat abortion restrictions, and that they should be permitted to challenge a law that might “indirectly” harm women’s interests in obtaining a convenient abortion.
Three of the dissenters (not including Kavanaugh) agreed that abortionists and clinics lacked standing to challenge the Louisiana law. In lengthy treatments of Supreme Court precedents about the importance of standing in order for the Court even to have the authority to hear a case under its Article III powers, Justices Thomas and Alito forcefully pushed back on the majority. Alito and Gorsuch spoke particularly fervently about the dangerous conflict of interest in allowing doctors to overthrow laws designed to safeguard the patients in their care. Gorsuch penned a detailed portrait of the dangers that abortionists in Louisiana pose to their patients. He noted the extraordinarily lax reviews the clinics conduct prior to hiring abortionists, reporting that abortion clinics had previously allowed ophthalmologists and radiologists to perform abortions! He also pointed to the “dozens” of ethical and safety violations that Louisiana abortion clinics had committed in the past.
The next important question the Court considered is the appropriate standard for reviewing abortion laws. The plurality justices stood by the standard that the Court (then including Justice Anthony Kennedy) adopted in Whole Woman’s Health. It allows the Court to conduct the kind of test that legislators use when they evaluate whether or not to pass a law: whether the benefits of the law outweigh the burdens the law imposes, considering the law’s object. This test differs from the one announced in the Casey decision. There, the Court did not claim a right to balance benefits and burdens; rather, it analyzed whether the effects of an abortion restriction constituted a “substantial obstacle” or “undue burden” upon a woman’s access to legal abortion.