On Monday, the Supreme Court handed down its decision in the June Medical Services v. Gee case. While not a direct threat to Roe v. Wade, it involved a Louisiana law that sought to drive a stake through the heart of women’s reproductive choice. Chief Justice John Roberts concurred with the four liberal judges to strike down the law.
As a reminder, Louisiana passed a law that required any doctor performing an abortion to have admitting privileges at a state-approved hospital within 30 miles of the clinic. Proponents of the law claimed that the restriction was aimed at protecting women’s health, but the American College of Obstetricians and Gynecologists and the American Medical Association opposed it, saying that legal abortion is one of the safest medical procedures performed in the United States. The truth is that it was simply an attempt to restrict women’s access to abortion services.
The Louisiana law took direct aim at the Supreme Court’s decision in Planned Parenthood v. Casey, a 1992 ruling that upheld Roe v. Wade, but gave states the ability to regulate the procedure. The stipulation in Planned Parenthood v. Casey was that a regulation would be ruled unconstitutional if it placed an “undue burden” on a woman’s right to obtain an abortion. If that requirement was successfully challenged, as the Louisiana law attempted to do, states would be able to implement restrictions that make the procedure basically unavailable to women. That is what was at stake in June Medical Services v. Gee.
Frankly, I was convinced that the ruling in this case would go in the opposite direction. That is because, in 2016, the Supreme Court heard a case from Texas with exactly the same kind of restriction on abortion clinics, Whole Woman’s Health v. Hellersted. At the time, there were eight justices on the court following the death of Antonin Scalia. While Justice Kennedy—who has since retired—voted with the liberal justices, Roberts voted with the other two conservatives to uphold the Texas law. The outcome in that case was a 5-3 decision to strike down the restriction as unconstitutional based on Planned Parenthood v. Casey. Anti-abortion activists decided to try again with the Louisiana law, assuming that, with the addition of Gorsuch and Kavanaugh to the bench, it would be upheld this time. As expected, Trump’s two Supreme Court appointments voted with Thomas and Alito to uphold the restrictions on abortion clinics. The surprise came from Chief Justice John Roberts.
Ironically, it was the decision in Whole Women’s Health v. Hellersted on which Roberts based his decision to flip from his previous position and strike down the Louisiana law. He based his argument on stare decisis, a legal principle that binds judges to precedents. Here is what he wrote:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason I concur in the judgement of the Court that the Louisiana law is unconstitutional.
I have to admit that the line about factual findings not being clearly erroneous made my head spin a bit, being reminiscent of Kellyanne Conway’s reference to “alternative facts.” But depending on your point of view, the overall argument might sound either principled or convoluted.
Perhaps the more significant conclusion is that the Chief Justice doesn’t want the Roberts Court to go down in history as the radical body that took health insurance away from millions of people or contributed to the deportation of hundreds of thousands of Dreamers. Now he’s done the same thing when it comes to avoiding a death blow to women’s reproductive rights. It is worth noting, however, that Roberts was willing to allow his legacy to be tied to the death of the provision that was the backbone of the Voting Rights Act.
I have been suggesting for a while now that these decisions by the Supreme Court will be prominent in the lead-up to the November election. So far, the pattern is clear with regards to cases involving protections for LGBTQ Americans, DACA protection for Dreamers, and women’s reproductive health rights. All three of those decisions take direct aim at the so-called “culture warriors” on the right. Whether or not all of that results in renewed enthusiasm at the ballot box or complacency at the inability to secure wins by stacking the courts remains to be seen. For those on the left, however, Ethan Somers makes the salient point.
There is one more huge Supreme Court case waiting in the wings for a decision to be handed down shortly: whether to uphold subpoenas for the release of the president’s financial statements and tax returns. At this point, that should have Donald Trump shaking in his
boots slippery leather-soled shoes.