U.S. Supreme Court

Chemerinsky: Stakes are high as SCOTUS considers 2 major abortion cases

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Erwin Chemerinsky. Photo by Jim Block.

In a term of high-profile cases, none will receive more attention than the abortion cases to be heard on March 4: June Medical Services v. Gee and Gee v. June Medical Services. These are the first abortion cases before the court since Justices Neil M. Gorsuch and Brett M. Kavanaugh have joined the bench. The court’s decisions in these cases may well signal the future of abortion rights in the United States.

The cases involve a Louisiana law that requires a doctor performing an abortion to have admitting privileges at a hospital within 30 miles. The question is whether this law places an undue burden on a woman’s right to an abortion. Also before the court is the issue of “whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a ‘close’ relationship with their patients and a ‘hindrance’ to their patients’ ability to sue on their own behalf.”

Prior precedents

For both of these issues, there are prior U.S. Supreme Court decisions that are seemingly on point. In 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court in a 5-3 decision declared unconstitutional a Texas law that required doctors to have admitting privileges at a hospital within 30 miles. In fact, the Louisiana law now before the court was modeled after the Texas statute.

Justice Stephen G. Breyer wrote the opinion for the court, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia M. Sotomayor, and Elena Kagan. The court stressed that in deciding whether a law imposes an undue burden on abortion it is for the judiciary to balance the justifications for the restrictions against their effects on the ability of women to have access to abortions. The court concluded that the Texas law would greatly limit the ability of women in Texas to have access to abortions, without any evidence that the restrictions would protect women’s health.

The court explained that the effect of the Texas law would be to close many of the facilities in the state where abortions are performed.

As for the other issue now before the court concerning standing, in Singleton v. Wulff, in 1976, two physicians were accorded standing to challenge a state statute that prohibited the use of state Medicaid benefits to pay for nontherapeutic abortions (abortions that were not necessary to protect the health or life of the mother). The high court observed that the statute injured doctors because it denied them payments for particular medical services. Moreover, the court emphasized the closeness of the doctors’ relationship to the patient and that “the constitutionally protected abortion decision is one in which the physician is intimately involved.” The court concluded that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.”

abortion words and gavelImage from Shutterstock.com.

The Louisiana case

After the Supreme Court’s decision in Whole Woman’s Health, many courts declared unconstitutional laws that imposed admitting privileges requirements on doctors performing abortions. In fact, the federal district court, in a 116-page opinion, declared Louisiana’s Act 620 unconstitutional and permanently enjoined the law.

But the New Orleans-based 5th U.S. Circuit Court of Appeals reversed, concluding that differences between “facts and geography” in Louisiana and Texas dictated a different outcome than in Whole Woman’s Health. The 5th Circuit declared, “no woman would be unduly and thus unconstitutionally burdened by” an admitting-privileges law. The 5th Circuit found that the Louisiana law would have a “minimal benefit” for women’s health. But having concluded that the Louisiana would impose only an “insubstantial burden,” the 5th Circuit said that it need not balance the law’s benefits and burdens. The court upheld the Louisiana law based on its not putting an undue burden on women’s access to abortion.

Judge Patrick Higginbotham dissented. He said that the panel “fail[ed] to meaningfully apply” Whole Woman’s Health. He deemed it “beyond strange” that the panel majority violated the cardinal rule that “appellate judges are not the triers of fact.”

The Possibilities

The court has myriad options, and what it chooses likely will shape litigation over abortion rights for years to come. Over the last decade, states have adopted hundreds of new laws restricting access to abortions.

One possibility is that the court could follow precedent, upholding standing for health providers to challenge restrictions on abortion and following Whole Woman’s Health to strike down the Louisiana law. It is expected that there are four votes for this—Ginsburg, Breyer, Sotomayor, and Kagan. But is there a fifth without Anthony Kennedy? Justice Samuel A. Alito wrote the dissent in Whole Woman’s Health, joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas. None of those three justices have ever voted to strike down any restriction on abortion. Might either Justice Gorsuch or Justice Kavanaugh, both of whom are assumed to be foes of abortion rights, be a fifth vote to strike down the Louisiana law?

Another possibility is that the court could narrow the law concerning third-party standing and hold that health providers cannot represent their patients and challenge laws restricting access to abortion. This, though, was not raised in the trial court, and the Supreme Court also would have to conclude that this is jurisdictional and cannot be waived. It would be a major change in the law for the court to restrict third-party standing in this way. The court often has allowed third-party standing based on a sufficient identity of interests between the plaintiff and a third-party. For example, in Craig v. Boren, the court held that bartenders could represent the interests of their male customers in challenging an Oklahoma law that allowed women to buy low-alcohol beer at 18 while men could not do so until age 21.

If the court does not change the law of standing, it could uphold the law by accepting the distinctions that persuaded the 5th Circuit. It could stress that there was not a sufficient basis for concluding that the Louisiana law would have a significant effect on limiting access to abortion. The solicitor general, on behalf of the Trump administration, has urged the Supreme Court to affirm the 5th Circuit on this basis.

Or, of course, the court could go further and overrule Whole Woman’s Health. This would be a clear signal of a willingness to uphold the many laws that have been adopted that are referred to as “targeted restrictions of abortion providers.” Many of these laws were struck down after Whole Woman’s Health, and overruling that decision would indicate a court willing to permit such restrictions.

Finally, conceivably, the court could use this as the vehicle for overruling Roe v. Wade and ending constitutional protection for abortion rights. Many believe that there are five votes to do so with Gorsuch and Kavanaugh joining Roberts, Thomas, and Alito. But most think that John Roberts would prefer the court to move incrementally and would be unlikely to go so far as to use this case to end abortion rights.

But everyone agrees that the stakes are enormous in these cases, for women in Louisiana and throughout the country, as well as for the future of abortion laws and litigation throughout the United States.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.

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