SCOTUS abortion case tests order in the John Roberts court

SOTUS gets emotional.
SOTUS gets emotional.
Image: Reuters
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It’s a rare day when two of three attorneys at a US Supreme Court oral argument are women and a sea of chanting ladies is flooding the streets outside the courthouse. But today was one such occasion because, of course, abortion.

The justices are considering a Louisiana law that severely limits access to abortion and is modeled on Texas legislation the high court found unconstitutional in 2016. It requires abortion providers to be associated with local hospitals and is ostensibly designed to protect women’s health but in practice severely restricts services.

A Louisiana federal district court found the law unduly burdened women without advancing a legitimate governmental interest. The Fifth Circuit Court of Appeals reversed that decision, distinguishing the facts in Louisiana from the Texas case, and the high court now has to decide who is correct.

Activists on the left and right are on fire. The case, June Medical Services v. Russo, is significant because it’s about abortion, one of the most hotly debated topics in American culture and politics, and because it’s a test of this bench. It represents the first opportunity for a newly-constituted Supreme Court, now including conservative justices Brett Kavanaugh and Neil Gorsuch, to overrule precedent on a classically supremely divisive issue.

The Texas case was decided by an eight-justice panel before either of them was appointed, and they might take the opportunity to overrule the precedent or distinguish this case, making it easy for states to restrict abortion access. Theoretically, it would be easy to do. Conservatives John Roberts, Clarence Thomas, and Samuel Alito were in the minority on the Texas case, and the conservatives presumably now have a majority.

However, the presumption is premised on an assumption, which makes it an arguably faulty structure. It assumes chief justice Roberts wants to advance a conservative cultural agenda more than he wants order in the court. Based on the chief’s general emphasis on the importance of impartiality and as his fair and fairly unrevealing question at arguments today showed, that doesn’t necessarily seem to be the case.

He may yet take the Zen master’s middle path and walk the walk of moderation that he talks, becoming that critical swing vote as so many people hope or fear.

Respecting the precedent

Abortion providers challenging the law were represented by Julie Rikelman while Louisiana solicitor general Elizabeth Murrill argued for the state. Rikelman, as the lawyer for the petitioner, began the hearing and she strategically chose to do so with a simple and poignant line designed for a Roberts sore spot.

“Mr. Chief Justice, and may it please the court: This case is about respect for the court’s precedent.”

If he does want to rule against her clients, he’ll have to ignore a lot of law, overlooking not only his court’s 2016 ruling but also the district court’s factual findings. That’s problematic because a trial court’s conclusions of fact are generally granted great deference by appellate judges because that’s where the record is created, witnesses are heard, and evidence is presented.

“In reversing the district court’s decision, the Fifth Circuit committed two fundamental errors,” Rikelman argued. “First, it usurped the role of the district court and disregarded nearly all of its factual findings. Second, the Fifth Circuit accepted legal arguments that this court rejected four years ago. Nothing, however, has changed that would justify such a legal about-face.”

Technically, that’s correct. From a legal perspective, yes, nothing has changed since 2016. Politically and culturally, however, ours is a brave new world and this is a newly-reconstituted bench that is, maybe, playing a whole new ballgame.

Roberts’ first question for Rikelman seemed to indicate the Texas precedent didn’t dictate a ruling on the Louisiana law. He asked, “Counsel, do you agree that the inquiry … is a factual one that has to proceed state-by-state?”

When she countered that there were no material differences between the laws or their effects here, the chief interrupted impatiently. “No, no, I know, but … the results could be different in different states?”


Kavanaugh, inspired by Roberts, interrupted Rikelman’s response, pressing the chief’s point. “[A]ssume all the doctors who currently perform abortions can obtain admitting privileges, could you say that the law still imposes an undue burden, even if there were no effect?”

She countered that there is an effect. The Louisiana law would leave just one clinic in one state to serve about 10,000 people per year. “And that would mean that hundreds of thousands of women would now live more than 150 miles from the closest provider. And the burdens were actually more severe than this Court found in [the Texas case],” Rikelman said.

She added that laws requiring clinic doctors to have associations with hospitals do not advance health interests, and on this point, she found staunch allies in Ruth Bader Ginsburg and Sonia Sotomayor. Throughout the hearing, Ginsburg continually pressed the practical points that the vast majority of abortions don’t lead to complications and the few that do tend to arise when a woman is already home.

In those rare situations, a patient is going to the closest hospital, not the one associated with her clinic doctor. Moreover, most of the procedures aren’t even surgical but just involve taking “two pills,” as she put it.

As Sotomayor tried to make a point about the burdensome effects of the Louisiana law on women and the impossibility of fulfilling the state’s hospital admitting privileges requirements, Kavanaugh interrupted her. “Could I—” he pleaded.

He could not. She went through the various obstacles each doctor in the case faced trying to fulfill Louisiana’s requirements until he interjected again.

“Can I follow up on the chief justice’s earlier question and mine as well,” he insisted. “Are you saying that admitting privileges laws are always unconstitutional, such that we don’t have to look at the facts state by state? Or are you saying that actually you do look at the facts state by state, and in some states, admitting privileges laws could be constitutional, if they impose no burdens?”

Although the courtroom was packed, with press stacked in tight rows in back like sardines, it was easy to imagine the junior justice starry-eyed, dreaming of drafting a narrow majority opinion fully pretending to respect the precedent but ruling for Louisiana on factual grounds.

Kavanaugh pressed Rikelman: “So your view is that they’re unconstitutional in any state, regardless of the facts?”

Sorry not sorry

Louisiana’s lawyer, Murrill, sweetened delivery of an alarming argument with a southern drawl. The law was put in place based on “abundant evidence” of life-threatening health and safety violations, she explained. The state needs to keep an eye on doctors!

Ginsburg was utterly unmoved. She matter-of-factly returned to her practical refrain, challenging the alleged health concerns until Roberts chimed in, also keeping to a theme.

He asked Murrill the opposite question he’d asked her opponent. “Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we’re talking about?” Where before he’d pressed the petitioners’ counsel to admit facts matter, here he was pushing the respondent to admit that, though the facts may change case-to-case thus dictating different outcomes potentially, the rules do not.

Murrill didn’t give, though, and may have missed the point when replying, “No.” She argued that a state’s regulatory structure might make a law more beneficial in one state than another. But that’s a factual matter. It doesn’t change the test the court will use to weigh the burdens and benefits, just how much weight one might give a particular regulatory structure.

Sotomayor cut Murrill off, saying “I’m sorry” but sounding not at all apologetic. She asked:

There are laws that require credentialing to be done by the state with respect to these doctors, correct? They have to get a license and they have to have certain competencies to get the license. And the license is suspended if they are convicted of a criminal act. You’re making it sound like there is no state licensing of these doctors. They are licensed. They are regulated.

With this, Murrill was finally forced to concede a point. She tried to argue that the state was concerned with continuity of care for women after treatment in clinics, hence the insistence on hospitals admitting privileges but that claim seemed to anger Elena Kagan.

Kagan rejected the state’s contention that additional requirements serve a medical need. “Is it right that there is evidence in the record that Hope Clinic has served over 3,000 women annually for 23 years, so that’s around 70,000 women, and has transferred only four patients ever to a hospital?”

The lawyer tried to argue it wasn’t quite right, saying the clinic doesn’t really know because it doesn’t track complications. ”They know whether they have transferred women to a hospital, and it’s four,” the justice replied curtly.

Sitting the bench

Clarence Thomas said nothing, as ever, but he’s a reliable conservative, and Neil Gorsuch did not tip his hand, which is not unheard of. Gorsuch doesn’t always talk, though he’s certainly not averse. Still, his non participation in what was such an obviously consequential matter may well have been strategic, rather than based on boredom, say.

Samuel Alito, on the other hand, was riled up about an issue that’s a bit of an aside. Unusually emotional, he twice exclaimed “That’s amazing!” at the petitioners’ argument that doctors who serve women at clinics can sue on behalf of their patients in a law that regulates the caregivers’ activities. Alito sees a conflict of interest, with doctors offering a commercial service and women their potential victims apparently.

However, as Stephen Breyer noted, it’s entirely common practice for doctors to sue in cases like this and would require ignoring at least four prior rulings to decide on “standing” grounds as Alito suggests. Standing governs who can and cannot sue in a given matter and it’s usually raised at the start of litigation. Louisiana is now claiming that doctors can’t sue over a law designed to protect women but it didn’t raise the claim before.

The federal government argued as a friend of the court siding with Louisiana, and picked up on Alito’s point. But Sotomayor put principal deputy solicitor general Jeffrey Wall of the Justice Department in his place pretty handily, asking, “what sane woman” who supports abortion is going to have a conflict with a doctor who wants to protect that right … I don’t see a conflict with that.”

“The court is struggling”

In the end, it was Breyer who summed it up best. The problem is not standing or benefits or burdens or doctor certification concerns, or not in the big picture. The issue is that the nation is divided over a moral question and, as he puts it, “people have very strong feelings” about abortion.

“[A] lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong,” he said. “And … 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.”

It was a refreshingly honest assessment, one that didn’t attempt to ignore the fact that the law has a cultural impact and that activists on the courthouse steps could be heard shouting competing pro-choice and pro-life slogans as advocates argued aside. Roberts was not as effusive as Breyer—which is par for the course, he never is—but he and others surely shared his anguish.

There was evidence of this when he issued statement this afternoon, chiding senator Chuck Schumer of New York for his activism. It was a rare declaration from Roberts, providing:

This morning senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. [He] referred to two Members of the court by name [Neil Gorsuch and Brett Kavanaugh] and said he wanted to tell them that ‘You have released a whirlwind and you will pay the price. You will not know what hit you if you go forward with those awful decisions.’ Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job without fear or favor, from whatever quarter.

The court should issue a decision by term’s end in June. But no matter how it rules, you can be sure the abortion war will rage on for years to come.