Monday, June 29, 2020


The holding in Whole Women's Health survived.   Today's release of the US Supreme Court's opinion in June Medical Services v Russo relied on differing legal interpretations.   In striking down Louisiana's restrictive abortion law, Justice Breyer noted that the Louisiana law was practically the same as the Texas law struck down by the Supreme Court in Whole Women's Health.  Both Texas and Louisiana sought to require doctors performing abortions to have privileges at local hospitals, an impossible process for the doctors named as Plaintiffs in the June Medical Services cases, as they proved during the pendency of the case. 

Justice Breyer focuses on the standard of review for Appellate Courts in reviewing a District Court order.  He emphasized the limited availability for courts to reinterpret the lower court's findings.  Those findings were, as noted, were more extensive than the findings made in the Texas case.  He also noted that when the 5th Circuit Court of Appeals reversed the Louisiana District Court's holding that the law was unduly burdensome on women seeking abortions they did so by criticizing the lower court findings.  Justice Breyer observed that the Appeals Court cannot reinterpret the lower court's findings and the Appeals Court should not have done so.  "In light of the record, the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support and are not clearly erroneous. Thus, the court’s related factual and legal determinations and its ultimate conclusion that Act 620 is unconstitutional are proper."

Justice Roberts took a different approach.  The Chief Justice, who dissented in Whole Women's Health, wrote in his concurring opinion "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents."

The anti-choice legal strategists did not anticipate this result.  They rushed to move June Medical Services through the system in order to reach the Supreme Court.  One concession they made in the lower court was to stipulate that the Plaintiff doctors had standing to bring the case.  The strategy focused on speed, getting the case before the Supreme Court as soon as possible after securing what the strategists perceived as a majority "anti-abortion" justices. The strategists presumed that the decision would come down to the justices' personal preferences.  What the anti-choice lawyers failed to properly assess was Justice Robert's commitment to the rule of law and his dedication to maintaining the integrity of the Court. What they thought was an opportunity for Chief Justice Roberts to turn his Women's Whole Health dissent into a majority opinion resulted in his commitment to preserving one of the court's fundamental legal concepts. 

The anti-choice strategists will return.  June Medical Services is a stumbling block but not an insurmountable one. In future anti-choice laws will be crafted without mimicking other laws that have failed. Then stare decisis may not be invoked.

Margaret Drew, Reproductive Rights | Permalink


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