Sunday, March 8, 2020
On March 4, the United States Supreme Court heard oral argument in June Medical Services, LLC v. Russo, an important case concerning the states’ ability to regulate abortion providers and access to abortion services. Specifically, the Court will decide the constitutionality of a law in Louisiana that requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the providers perform abortions.
By way of brief background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s right to privacy, which the Court recognized in Griswold v. Connecticut (and other cases), encompassed a right to abortion. In so holding, the Court established a trimester framework. Under this framework, laws restricting access to abortions during the first trimester were presumptively unconstitutional. During the second trimester, states could only regulate abortion to protect a woman’s health and, in the third trimester, states were generally permitted to prohibit abortions, except to save or preserve the life of the mother. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roe but rejected the trimester framework. In so doing, the Court adopted an “undue burden” test. Under this standard, the constitutionality of laws regulating abortion depends on whether such laws unduly burden a woman’s right to access abortion services. After Planned Parenthood, several states enacted legislation to regulate and, arguably, restrict abortion access, and the Court, applying the undue burden standard, addressed the validity of these laws on a case-by-case basis. As a result, the nature and scope of the right to abortion remains unresolved.
The Court’s decision in June Medical Services will be among the most significant in the Court’s abortion jurisprudence. To begin with, the Court’s decision will clarify the precedential value of Whole Women’s Health v. Hellerstadt, where the Court invalidated – by a 5-4 margin – a nearly identical law in Texas. In Hellerstadt, the Court held that the law in question conferred no material benefit on women and would likely lead to the closure of several abortion clinics, thus constituting an undue burden on the right to obtain abortion services. Additionally, the Court’s decision will likely impact the states’ ability to restrict abortion access in future cases and may clarify the scope of the right to abortion. Third, although not likely, the Court may adopt a new or, at least, modified standard by which to assess the constitutionality of laws regulating abortion, particularly because the “undue burden” standard has arguably been difficult to interpret and apply with any degree of consistency or predictability.
At oral argument, the justices appeared divided.
Justice Samuel Alito raised the issue of third-party standing and questioned whether physicians who provided abortions could challenge the law on behalf of women. Specifically, Justice Alito appeared concerned that the physicians’ interests (i.e., avoiding unnecessary or burdensome regulations) conflicted with the interests of women seeking abortion services (i.e., safety and continuity of care). The majority of justices, however, did not appear to find this argument persuasive.
Chief Justice Roberts focused primarily on whether the benefits (and burdens) of laws requiring admitting privileges for abortion providers may differ on a state-by-state basis. Justice Brett Kavanaugh also questioned whether these laws would be considered constitutional if abortion providers could easily obtain admitting privileges at a nearby hospital. Roberts’s and Kavanaugh’s questions suggested that the Court may be considering whether these laws are facially constitutional or whether their constitutionality depends on the facts of each case.
Justice Ruth Bader Ginsburg, along with Justices Sonya Sotomayor, Stephen Breyer, and Elena Kagan, appeared skeptical of the law. For example, Justice Ginsburg questioned the utility of requiring that abortion providers obtain admitting privileges within thirty miles of where abortion serves are provided. As Justice Ginsburg stated, since the relatively small number of women who experience complications from medical or surgical abortions go to a hospital nearest to their residence, which almost always outside of the thirty-mile radius, the admitting privileges requirement arguably served no legitimate purpose.
Justice Sotomayor questioned whether, given the various requirements for obtaining admitting privileges at Louisiana’s hospitals, abortion providers could realistically obtain such privileges. For example, one factor is whether the physician has admitted a sufficient number of patients to the hospital to which the physician is applying. Given the fact that women rarely experience complications from abortions and thus are not admitted to a nearby hospital, abortion providers would not, in most instances, meet this requirement. This and other questions suggested that the law in Louisiana, like the law in Texas, reflected an attempt to restrict or even prohibit abortions, rather than to safeguard women’s health. The attorneys for Louisiana disagreed, arguing that most of the physicians who challenged the law had not made reasonable attempts to obtain admitting privileges and thus could not reasonably claim that they were unable to obtain such privileges.
Justice Breyer also questioned whether the Fifth Circuit Court of Appeal’s decision to overturn a portion of the district court’s factual findings satisfied the “clearly erroneous standard.”
And Justice Kagan appeared skeptical of the argument that the law served a “credentialing purpose,” particularly because hospitals could deny admitting privileges to a physician based on factors having no relationship to the quality of that physician.
Ultimately, Justice Breyer expressed a concern that has arguably plagued the Court’s abortion jurisprudence: the difficulty in adopting a reliable, predictable, and workable rule.
I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.
Based on the oral argument, the Court’s decision in June Medical Services is difficult to predict. The difficulty of applying the nebulous “undue burden” standard, the politically divisive nature of this issue, principles of stare decisis, and concerns for the Court’s institutional legitimacy may certainly influence one or more of the justices.
Notwithstanding, based on oral argument, it seems that the Court may decide June Medical Services by a 5-4 vote, and if the Court invalidates the law, the most likely scenario would involve Chief Justice Roberts joining Justices Ginsburg, Kagan, Sotomayor, and Breyer in the majority. However, it is uncertain how Justices Neil Gorsuch and Brett Kavanaugh will vote, or how the majority decision will be written. It appears unlikely that the Court will simply overturn Whole Women’s Health; rather, if the Court upholds the law, it will likely do so by distinguishing Whole Women’s Health on the facts. The problem is that, if the Court chooses this option, it will fail to effectively guide lower courts and lawmakers, thus inviting additional litigation in the future. As such, the Court may hold that laws requiring abortion providers to obtain admitting privileges are facially unconstitutional because, regardless of the state in which such laws are enacted, they confer no benefit to women.
 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).
 579 U.S. ; 136 S. Ct. 2292 (2016).
 See June Medical Services, LLC v. Russo, Transcript of Oral Argument (March 4, 2020), available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf.
 Id. at 61:24 to 62:9.