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| The Supreme Court’s Fictional Middle Ground on Abortion | The Supreme Court’s Fictional Middle Ground on Abortion |
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| Following last week’s argument in a Louisiana abortion case, the consensus among attentive Supreme Court-watchers is that the outcome depends on Chief Justice John Roberts, who seemed not to share Justice Samuel Alito’s visceral dislike of abortion clinics and his deep suspicion of doctors who work in them. I agree. | Following last week’s argument in a Louisiana abortion case, the consensus among attentive Supreme Court-watchers is that the outcome depends on Chief Justice John Roberts, who seemed not to share Justice Samuel Alito’s visceral dislike of abortion clinics and his deep suspicion of doctors who work in them. I agree. |
| Further, many of these close observers came away believing that even if the justices rule for Louisiana, they will take neither of the two drastic steps being pressed on the court by the state and its White House ally: to reject four decades of settled law under which doctors can challenge abortion restrictions on their patients’ behalf, or to overturn the 2016 decision that struck down the same admitting-privileges requirement in Texas that Louisiana is now defending. | Further, many of these close observers came away believing that even if the justices rule for Louisiana, they will take neither of the two drastic steps being pressed on the court by the state and its White House ally: to reject four decades of settled law under which doctors can challenge abortion restrictions on their patients’ behalf, or to overturn the 2016 decision that struck down the same admitting-privileges requirement in Texas that Louisiana is now defending. |
| I agree with that prediction as well. The chief justice seemed to be probing for ways within the framework of the 2016 decision that Louisiana might be different from Texas, either because of a more persuasive rationale for requiring clinic doctors in Louisiana to have hospital admitting privileges or because the requirement imposes a lesser obstacle to abortion access in Louisiana than it did in Texas. | I agree with that prediction as well. The chief justice seemed to be probing for ways within the framework of the 2016 decision that Louisiana might be different from Texas, either because of a more persuasive rationale for requiring clinic doctors in Louisiana to have hospital admitting privileges or because the requirement imposes a lesser obstacle to abortion access in Louisiana than it did in Texas. |
| So why do I think that anyone who cares about preserving women’s access to abortion should be seriously worried? Wouldn’t a state-specific win for Louisiana, one that left existing precedents on the books, represent a reprieve from looming disaster, a moderate place for this conservative court to land, however tentatively or temporarily? | So why do I think that anyone who cares about preserving women’s access to abortion should be seriously worried? Wouldn’t a state-specific win for Louisiana, one that left existing precedents on the books, represent a reprieve from looming disaster, a moderate place for this conservative court to land, however tentatively or temporarily? |
| The answer to that question is an emphatic “no.” | The answer to that question is an emphatic “no.” |
| When it comes to the abortion landscape, there is no distinction that matters between Texas and Louisiana. There is not the shadow of a doubt that these laws were enacted not to protect women’s health, but to destroy the medical infrastructure that enables women to exercise their constitutional right to terminate a pregnancy. | When it comes to the abortion landscape, there is no distinction that matters between Texas and Louisiana. There is not the shadow of a doubt that these laws were enacted not to protect women’s health, but to destroy the medical infrastructure that enables women to exercise their constitutional right to terminate a pregnancy. |
| When the Texas bill passed in 2013, Lt. Governor David Dewhurst exultantly tweeted a map showing how many abortion clinics would have to close because of the inability of doctors to get the necessary admitting privileges. | When the Texas bill passed in 2013, Lt. Governor David Dewhurst exultantly tweeted a map showing how many abortion clinics would have to close because of the inability of doctors to get the necessary admitting privileges. |
| The next year, when the Louisiana Legislature passed its copycat bill, the Unsafe Abortion Protection Act, Gov. Bobby Jindal declared it part of his effort “to make Louisiana the most pro-life state in the nation.” (And, indeed, the state was deemed so the following year by Americans United for Life, the organization that has promoted the admitting privileges idea along with other measures aimed at abortion providers. It won the title again in 2019.) | The next year, when the Louisiana Legislature passed its copycat bill, the Unsafe Abortion Protection Act, Gov. Bobby Jindal declared it part of his effort “to make Louisiana the most pro-life state in the nation.” (And, indeed, the state was deemed so the following year by Americans United for Life, the organization that has promoted the admitting privileges idea along with other measures aimed at abortion providers. It won the title again in 2019.) |
| At the same time, according to the Centers for Disease Control and Prevention, Louisiana had the highest maternal death rate among the 47 states that provided data from 2012 to 2016. As a brief filed by the Information Society Project at Yale Law School points out, “Louisiana is not a ‘pro-life’ state; it is merely an anti-abortion one.” | At the same time, according to the Centers for Disease Control and Prevention, Louisiana had the highest maternal death rate among the 47 states that provided data from 2012 to 2016. As a brief filed by the Information Society Project at Yale Law School points out, “Louisiana is not a ‘pro-life’ state; it is merely an anti-abortion one.” |
| Justice Stephen Breyer’s majority opinion in the 2016 case, Whole Woman’s Health v. Hellerstedt, invoked national data showing the admitting privileges requirement not only offers no medical benefit to women, but actually threatens women’s health by shrinking the number of providers, increasing waiting times for appointments and making abortion less accessible. Applying the court’s “undue burden” test for an abortion regulation’s constitutionality, Justice Breyer said the burden imposed by the Texas law so far outweighed any benefit that it failed the test and was therefore unconstitutional. | Justice Stephen Breyer’s majority opinion in the 2016 case, Whole Woman’s Health v. Hellerstedt, invoked national data showing the admitting privileges requirement not only offers no medical benefit to women, but actually threatens women’s health by shrinking the number of providers, increasing waiting times for appointments and making abortion less accessible. Applying the court’s “undue burden” test for an abortion regulation’s constitutionality, Justice Breyer said the burden imposed by the Texas law so far outweighed any benefit that it failed the test and was therefore unconstitutional. |
| The vote in Whole Woman’s Health was 5 to 3. Justice Antonin Scalia had died several months earlier; had he been on the court, or had his successor, Neil Gorsuch, been seated in time, the vote would surely have been 5 to 4. Justice Anthony Kennedy voted with the majority. Now, Justice Brett Kavanaugh sits in Justice Kennedy’s all-important seat. | The vote in Whole Woman’s Health was 5 to 3. Justice Antonin Scalia had died several months earlier; had he been on the court, or had his successor, Neil Gorsuch, been seated in time, the vote would surely have been 5 to 4. Justice Anthony Kennedy voted with the majority. Now, Justice Brett Kavanaugh sits in Justice Kennedy’s all-important seat. |
| During last week’s argument in June Medical Services v. Russo, Louisiana’s solicitor general, Elizabeth Murrill, argued that her state was “demonstrably different” from Texas in both its need for additional regulation and the opportunity its hospitals offer for receiving admitting privileges — if only doctors would try harder. | During last week’s argument in June Medical Services v. Russo, Louisiana’s solicitor general, Elizabeth Murrill, argued that her state was “demonstrably different” from Texas in both its need for additional regulation and the opportunity its hospitals offer for receiving admitting privileges — if only doctors would try harder. |
| The facts, as laid out by a federal district judge, John deGravelles, after a six-day trial, are completely different however. At the time he ruled in 2017, only four patients of the Shreveport-based Hope Clinic, which brought the case on behalf of its doctors and patients, had needed hospitalization during the 23 years the clinic had been providing some 3,000 abortions a year. The judge wrote that one doctor’s effort to get admitting privileges “reads like a chapter in Franz Kafka’s ‘The Trial.’ ” He said, moreover, that if the law takes effect, there will be one or at most two doctors performing abortions in Louisiana. (In overturning the District Court decision, the United States Court of Appeals for the Fifth Circuit substituted its own factual findings for those of Judge deGravelles, a remarkably aggressive move for an appellate court ordinarily bound to accept the trial court’s findings of fact unless they are “clearly erroneous.”) | The facts, as laid out by a federal district judge, John deGravelles, after a six-day trial, are completely different however. At the time he ruled in 2017, only four patients of the Shreveport-based Hope Clinic, which brought the case on behalf of its doctors and patients, had needed hospitalization during the 23 years the clinic had been providing some 3,000 abortions a year. The judge wrote that one doctor’s effort to get admitting privileges “reads like a chapter in Franz Kafka’s ‘The Trial.’ ” He said, moreover, that if the law takes effect, there will be one or at most two doctors performing abortions in Louisiana. (In overturning the District Court decision, the United States Court of Appeals for the Fifth Circuit substituted its own factual findings for those of Judge deGravelles, a remarkably aggressive move for an appellate court ordinarily bound to accept the trial court’s findings of fact unless they are “clearly erroneous.”) |
| A Supreme Court decision that buys the state’s argument, that treats its 2016 decision as anything other than completely binding on Louisiana, will be nothing but a smoke screen. A cynic might call it an election-year ploy designed to make an indefensible outcome look moderate. It doesn’t take a cynic to understand that there is no middle ground here. | A Supreme Court decision that buys the state’s argument, that treats its 2016 decision as anything other than completely binding on Louisiana, will be nothing but a smoke screen. A cynic might call it an election-year ploy designed to make an indefensible outcome look moderate. It doesn’t take a cynic to understand that there is no middle ground here. |
| Back in 2016, that was immediately clear to Alabama’s attorney general, Luther Strange, a Republican, who was in the midst of appealing a ruling by a federal district judge, Myron Thompson, that the state’s admitting privileges law was unconstitutional. Recognizing that the Supreme Court’s ruling necessarily applied to his state’s law as well, Mr. Strange announced, “Accordingly, my office will dismiss our appeal of a 2014 federal court ruling declaring Alabama’s abortion clinic law unconstitutional.” | Back in 2016, that was immediately clear to Alabama’s attorney general, Luther Strange, a Republican, who was in the midst of appealing a ruling by a federal district judge, Myron Thompson, that the state’s admitting privileges law was unconstitutional. Recognizing that the Supreme Court’s ruling necessarily applied to his state’s law as well, Mr. Strange announced, “Accordingly, my office will dismiss our appeal of a 2014 federal court ruling declaring Alabama’s abortion clinic law unconstitutional.” |
| Nearly four years later, that action by a Deep South attorney general appears even more remarkable than it did at the time: an elected politician acted like a lawyer. My fear now is two-pronged: that the lawyers on the Supreme Court will behave like politicians and that too many of us will be too snowed by their seeming moderation to call them out on it. | |
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