Jacquelyn Martin/AP Photo
Abortion rights demonstrators cheer, March 4, 2020, as they rally outside the Supreme Court.
“Mr. Chief Justice and may it please the court,” attorney Julie Rikelman began. “This case is about respect for the Court’s precedent.” The case was June Medical Services, LLC v. Russo [formerly Gee], argued last week in the U.S. Supreme Court. Rikelman, the litigation director of the Center for Reproductive Rights, was arguing on behalf of a small, independent clinic that provides abortion care in northwest Louisiana. The evidence indicates that new requirements in a Louisiana law could force all but one of the existing abortion providers in the state to close. These requirements are that doctors who perform abortions have admitting privileges at hospitals, and that the hospitals with which they are affiliated be no more than 30 miles from the clinics at which they work.
This may sound like a simple matter of protection for abortion patients. But many abortions are of the “medical” variety, in which clinic doctors administer pills to patients and then follow up with them on repeat visits, with no surgery. Doctors who do this work often don’t develop strong relationships with hospitals. In addition, as Rikelman and the pro-choice justices pointed out, hospitals make decisions about whom to grant admitting privileges to on the basis of factors other than the doctors’ competency—perhaps especially so in a state like Louisiana, in which there is enormous hostility to abortion, and hospital decision-makers may decide they cannot risk the flak they’d get from granting privileges to people who offer abortion care.
As is true in all federal abortion cases, June Medical Services is about more than one law in one state. Because the potential consequences of Louisiana’s initiative are so severe, the case is really a test of whether a state can effectively legislate abortion out of existence without criminalizing patients or doctors for seeking or providing it per se, or by attacking Roe v. Wade head-on. The case has consumed the attention of people on all sides of the abortion question since the Supreme Court announced last fall that it had been scheduled for a hearing. In fact, people in favor of and opposed to legal abortion have had this case on their radar since it became clear that Louisiana was not about to stop defending its law, even though the Supreme Court found a very similar Texas law unconstitutional in 2016.
Rikelman and her colleagues chose to argue their case on the basis of high legal principles rather than digging into the evocative details of individual lives and what it’s like when abortion is mostly inaccessible. But the bloodlessness of the feminist appeal is part of a deliberate strategy: If the Louisiana clinic and its patients have any chance of prevailing in this case, that chance probably rests with Chief Justice John Roberts. Roberts voted on the side of Texas in the 2016 case of which this is a replay, so appealing to him on the substantive merits is a no-go. What we know about Roberts is that he is very conservative but that he sometimes votes with the so-called “liberal bloc” (Sotomayor, Breyer, Ginsburg, and Kagan) when the issue raised implicates the Court’s own legitimacy and traditions.
Undramatic as it may seem, then, Rikelman was shrewd to say that this case is about precedent. First, there is Roe v. Wade (1973) itself, the precedent which the new, Trump-appointed conservative justices Neil Gorsuch and Brett Kavanaugh pledged in their Senate confirmation hearings to respect. Roe stands for the principle that having abortion as an option is a matter of liberty and freedom for pregnant people in the United States. The implicit question raised by this case is, does a law that makes abortion mostly inaccessible in an entire state really follow that precedent? How prohibitive do the legislative standards have to be before they violate the constitutional right announced in Roe?
Rikelman’s oral argument before the Supreme Court also referenced Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which amended Roe by permitting many state-level controls on abortion but offering an “undue burden” standard by which to evaluate them: Restrictive laws were constitutional only if the barriers they placed in the way of pregnant people’s exercise of their rights were not “undue.” This standard is, admittedly, ambiguous. But reasonable people could certainly conclude that a law that puts most providers out of business is extremely burdensome for pregnant abortion seekers.
Last, and most immediately, Rikelman was referencing the Court’s majority opinion in the case Whole Woman’s Health v. Hellerstedt (2016), which found unconstitutional (that is, unduly burdensome) the Texas law that required all abortion providers to have admitting privileges in a nearby hospital—the same issue at the heart of June Medical Services.
Roe stands for the principle that having abortion as an option is a matter of liberty and freedom for pregnant people in the United States. The implicit question raised by this case is, does a law that makes abortion mostly inaccessible in an entire state really follow that precedent?
The essence of Rikelman and the clinic’s argument is that the Supreme Court should follow the storied legal doctrine of stare decisis and leave this particular issue alone for a while. Of course, the Supreme Court can rethink its own earlier pronouncements. If it couldn’t, we would never have gotten Brown v. Board of Education, which found decades of legalized racial subordination unconstitutional. But generally speaking, the justices are expected to take precedents very seriously and to overturn them only when the facts on the ground change appreciably, or there is new evidence available that the Court didn’t have when deciding the earlier case, or something else changes other than the political leanings of the people on the bench. As Center for Reproductive Rights head Nancy Northup pointed out after the oral argument, referring to the Court’s 2016 decision, “We already won this issue.” Amy Hagstrom Miller of the Texas abortion provider Whole Woman’s Health called it “surreal” to be back there just four years after the Court announced her victory in the case named for her clinic.
The role of precedent in our law is fundamental. But June Medical Services v. Russo raises two more issues that are almost as foundational as that one: whether, in the words of the main Center for Reproductive Rights brief to the Court, “legal holdings of higher courts are binding on lower courts,” and whether courts that hear appeals will accept the factual record that trial courts pass on to them—or if the appellate courts will go out and discover, or invent, their own facts. These issues are raised by the unusual way the case made it to the Supreme Court. Disturbingly, for advocates of legal and accessible abortion, the Louisiana law was found unconstitutional by a federal district court in Baton Rouge, but then the Fifth Circuit Court of Appeals invalidated that court’s decision. That appeals court went so far as to create a new factual record in the case on the basis of which it claimed that the Supreme Court’s findings from 2016 did not apply. “Unlike Texas,” Judge Jerry Smith wrote for the Fifth Circuit, “Louisiana presents some evidence of a minimal benefit” from the requirement that doctors have admitting privileges at hospitals close to their clinics—as opposed to the Texas case, in which the courts found that such a requirement was of absolutely no benefit to people seeking abortions.
Another serious issue raised by this case, which has implications for all abortion litigation and lots of other cases, too, is that of “standing,” that is, who has the legal right to bring a case. In the eleventh hour, as the June Medical Services case was on its way to the Supreme Court, Louisiana’s lawyers added an argument to their quiver that had not been there in the lower courts. They asked the Supreme Court to treat the whole case as invalid because the plaintiffs were doctors. Since the constitutional right announced in Roe, they argued, was the right of pregnant people to seek abortions, doctors who served those patients but were not themselves abortion seekers had no standing to bring a case about abortion rights. This argument met a lot of pushback from some of the justices, especially Ruth Bader Ginsburg, who referred several times to a precedent involving beer sellers who were allowed to litigate against a state rule that forbade selling a certain kind of beer to boys, but not girls, under age 21. (Ginsburg, in her old role as attorney for the women’s rights project of the ACLU, participated actively in that case.) The issue of doctors’ standing may not go anywhere. But abortion rights opponents would be delighted if doctors and clinics, and parties in other cases who actually have the financial and logistical ability to bring important, complicated, and costly litigation, were barred from participation. So would corporations that fear lawsuits from well-funded advocates for employees and consumers who can’t afford to go to court themselves.
The question of standing, and the gap between the legal right to bring a case and the financial ability to do so, has put both sides in this case in something of a contradictory quandary. The anti-abortion side suggests that women need to be protected by strict state laws from doctors and clinics that might endanger their health. Louisiana’s attorney general echoed the Fifth Circuit in claiming that hospital admitting privileges were a proxy for medical skill as well as a benefit to women’s health in themselves (although neither the American Medical Association nor the American College of Obstetricians and Gynecologists agrees with her). At the same time, Louisiana argued that women are autonomous citizens who are empowered in our legal system—and therefore can bring complex litigation into the federal courts on their own, without having doctors and clinics as lead plaintiffs.
This is paradoxical but not more paradoxical than the pro-choice perspective: The Center for Reproductive Rights and other advocates claim that pregnant people are fully capable of making choices about abortion without pseudo-protective state laws that make it harder to find a doctor who can do one. At the same time, they argue that doctors and clinics must be permitted to bring cases because many people won’t be able to do this on their own steam or their own dime. When you think about the particulars, this combination of positions makes plenty of sense. To win the argument, feminists need to argue simultaneously for agency and subordination, for pregnant people’s existence as free-thinking individuals and participation in a group that can suffer harms each of them individually lacks the ability to fight. That argument is sound, though it’s hard to fit this subtlety on a bumper sticker.
June Medical Services v. Russo is now up to the justices to decide. Court watchers say that they will probably haggle over the legal, political, and ethical issues it raises until the very end of the Supreme Court term in June. That’s when the case will stop being abstract. The issue on which the Court will rule isn’t Roe’s well-being as such, but the well-being of pregnant people in Louisiana and across the United States.
