Abortion is Back at the Supreme Court: A Case Preview

The Court today hears oral argument in one of the most watched cases of the term, June Medical Services v. Russo. The Court will review a decision of the Fifth Circuit Court of Appeals upholding a Louisiana law that required abortion providers have admitting privileges at local hospitals. Louisiana’s law is basically identical to a Texas law that the Court struck down in 2016 in Whole Woman’s Health v. Hellerstedt. This is the first abortion case the Court has heard since the retirement of Justice Anthony Kennedy, who voted with the majority in Whole Woman’s Health, and his replacement with Brett Kavanaugh, who is generally considered more skeptical toward abortion rights than Kennedy.

The Texas law overturned in Whole Woman’s Health had two requirements: first, that physicians providing abortion have admitting privileges at hospital no more than 30 miles from the abortion clinic; and second, that any abortion clinic must meet Texas’s minimum standards for outpatient surgical centers. The Court determined that both requirements placed a substantial obstacle in the path of women seeking a pre-viability abortion and therefore violated the “undue burden” standard the Court has established in the 1992 Casey decision. Because these burdens outweighed any medical benefits the requirements may have conferred, the Court struck them down as unconstitutional.

In spite of the Whole Woman’s Health decision, the U.S. Court of Appeals for the Fifth Circuit upheld a similar admitting-privileges law in Louisiana. The appeals court found that because no abortion clinics would be forced to close, the law did not impose an undue burden on the women’s right to choose abortion. The Fifth Circuit then denied rehearing en banc in a 9-6 vote.

The Justices today will consider two basic issues, one focused on whether the litigants have a right to bring the legal challenge (a question of “standing”), the other on the merits of the challenge itself. Louisiana raised the standing question, arguing that abortion providers cannot assert legal claims on behalf of women seeking abortions (known as “third-party standing”). Because standing is a threshold question and must be decided before moving to the merits of the case, the Court is likely to start its questioning here. A ruling in favor of Louisiana on the issue of third-party standing could have dramatic if less attention-grabbing effects on the future of abortion rights, as this article explains.

Once the Court moves to the merits of the abortion regulation, June Medical is likely to argue, as they did in their brief to the Court, that stare decisis will be undermined if lower courts can simply ignore constitutional determinations by the Supreme Court in the way they assert the Fifth Circuit did here. They are likely further to argue that the Fifth Circuit improperly applied the Court’s undue burden test from Whole Woman’s Health. Louisiana will counter that the Fifth Circuit properly applied the undue burden standard to the law and appropriately found that its benefits to women’s’ health outweigh any burdens that it imposes on access to abortion.

For more information on the case from a variety of viewpoints:

Click here  for an explainer of possible outcomes from Vox

Click here for an opinion piece from the Director of Public Policy at the Population Institute

Click here for an article from National Review.

And click here for an article discussing the possible role of Clarence Thomas in the upcoming decision or here for an NBC News article discussing the possible role of Chief Justice John Roberts.

This Post was Written by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

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