What About the Rule of Law?  Deviation From the Principles of Stare Decisis in Abortion Jurisprudence, and an Analysis of June Medical Services L.L.C. v. Russo Oral Arguments

Abstract

The right to abortion was established in Roe v. Wade in 1973.  Abortions have nevertheless been systemically inaccessible to vulnerable individuals and communities for generations, and anti-abortion state legislatures and the United States federal judiciary have continued to further obstruct abortion access.  This effort to undercut reproductive rights has taken on a new sense of urgency throughout the Trump Administration, as individuals with records of hostility toward reproductive rights are confirmed at record pace to lifetime positions on the federal judiciary.  These appointees consistently abandon the rule of law when considering cases regarding abortion.

The U.S. Supreme Court deviated from the principles of stare decisis in Box v. Planned Parenthood of Indiana and Kentucky (2019) and has further endangered those principles by granting certiorari in June Medical Services L.L.C. v. Russo (2020) to reconsider landmark precedent for abortion jurisprudence.  This Article highlights how the Supreme Court consistently makes an exception to the rule of law requiring adherence to the foundational principles of stare decisis when considering abortion issues.  Through an analysis of the oral arguments on March 4th, 2020, this Article argues that the Court’s decision to grant certiorari in June Medical Services v. Russo, thereby reconsidering three-year-old precedent from Whole Woman’s Health v. Hellerstedt and forty-year-old precedent from Singleton v. Wulff, is an ominous sign of what is to come.

Introduction

“It is a waste of the Court’s resources to take up a case simply to say we are bound by a party’s strategic litigation choice to invoke rational-basis review alone, but everything might be different under the close review instructed by the Court’s precedent.”[1]

In the early morning of March 4, 2020, hundreds gathered outside the U.S. Supreme Court building in anticipation of oral arguments in June Medical Services L.L.C. v. Russo.  Many were dressed in suits and waited in line to watch the arguments while others geared up to protest.  There were two sides rallying, one side in support of June Medical Services and the other in support of Act 620, a Louisiana abortion restriction requiring that all providers have hospital admitting privileges within thirty miles of the location where abortions are provided.

I stood on the side of June Medical Services with the Washington College of Law (WCL) Chapter of If/When/How: Lawyering for Reproductive Justice and a cohort of law students from campuses all over the country.[2]  We held signs and wore matching black bandanas emblazoned with the words “Loud Mouth Law Student.”  The bandanas referenced Senator Orrin Hatch’s statements about a protestor suggesting that the committee for Justice Kavanaugh’s confirmation hearings “ought to have this loudmouth removed,” and exclaiming “[w]e shouldn’t have to put up with this kind of stuff.  I hope she’s not a law student.”[3]

I had the ominous feeling that we were not only there to support abortion access in Louisiana, but to bear witness to the elimination of abortion access through an erosion of everything we were told about the rule of law in our respective legal educations.  There was something unsettling about our presence there at all that day: law students, the future of the legal profession, protesting against the same regulation found unconstitutional by the same Court only four years ago.  The significance of that day is yet to be unveiled, but an examination of the decisions already made by this Court reveals what we can expect.

This Article argues that the Court’s decision to grant certiorari in June Medical Services is part of an ongoing effort of anti-abortion interests to dismantle reproductive rights through the courts by capriciously deviating from the principles of stare decisis when reviewing laws restricting abortion access.  This Article acknowledges how these efforts have the greatest negative impact on people of color and financially vulnerable individuals.[4]  Part I of this Article provides a brief history of Supreme Court abortion jurisprudence that pertains to June Medical Services, including Whole Woman’s Health v. Hellerstedt.  Part I also reviews Box v. Planned Parenthood of Indiana and Kentucky, the most recent abortion case before the current Supreme Court.  Part II provides an overview of June Medical Services, recounting Act 620 and its rise through the courts, the regulation at issue, and the oral arguments before the Court on March 4, 2020.  Part III of this Article argues that the Supreme Court has deviated from the principals of stare decisis in favor of anti-abortion interests, as indicated by the oral arguments and the potential holding of the conservative majority of the Court.  Part III also argues that the Court’s decision to reconsider clearly defined and long-standing precedent only after the conservative majority of the Court was strengthened reveals how insufficient separation of powers between the executive and judicial branches are eroding the rule of law.

I. The State of Abortion Jurisprudence

The conservative majority of the U.S. Supreme Court consistently makes an exception to the rule of law requiring adherence to the foundational principles of stare decisis.  This abortion exception was evident in the Box v. Planned Parenthood of Indiana and Kentucky decision, when the Court upheld the Indiana fetal tissue disposition regulation that imposes an undue burden on abortion access.[5]  In the Box decision, released on May 28, 2019, the Court expressly claimed that the litigation strategy of Planned Parenthood of Indiana and Kentucky (PPINK) barred invocation of longstanding precedent that would have applied both the undue burden standard and strict scrutiny review to the Indiana law.[6]

This abortion exception was most recently demonstrated on October 4, 2019, when the Court announced it had granted certiorari in June Medical Services L.L.C. v. Russo[7] to reconsider the precedent determined three years prior in Whole Woman’s Health v. Hellerstedt.[8]  June Medical Services would also challenge the forty-year precedent established in Singleton v. Wulff,[9] granting third-party standing for abortion providers to sue on behalf of patients (provider standing).[10]  The only thing that has changed since Hellerstedt is the composition of the Court, following the confirmation of two conservative justices: Justice Kavanaugh and Justice Gorsuch.[11]  If the Louisiana abortion restriction known as Act 620 is upheld, anti-abortion state legislators will be given the green light to pass additional unconstitutional abortion restrictions with the assurance that, if the restrictions are appealed to the Court, they will be upheld.  In June Medical Services, the future of abortion access and the sanctity of abortion jurisprudence hang in the balance, and all signs are pointing toward their upheaval.

A. Supreme Court Abortion Jurisprudence: Past and Present

1. Foundational Abortion Precedent

The landmark Roe v. Wade[12] decision recognized the fundamental right to abortion by balancing the state interests and the interests of the pregnant individual, leading to the trimester test.[13]  This balance of interests provides that the further along in the gestation period of a pregnancy, the greater the state’s interest in protecting potential life.[14]  In 1992, the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey[15] narrowed the essential holding in Roe by recognizing the right to choose abortion before fetal viability, but held that the undue burden test, rather than the trimester test, should be used in evaluating the constitutionality of state restrictions on abortion.[16]

Under the undue burden test, the state violates the constitutionally protected right to abortion under the Due Process Clause when a regulation imposes an undue burden on previability abortion access.[17]  Because the undue burden test is a subjective fact-based analysis requiring evidence of unnecessary interference with abortion access, the judiciary has the power of interpreting whether a fact presented constitutes an unwarranted burden on abortion.  The transition to the undue burden test significantly increased the influence of judicial interpretation in abortion jurisprudence.

 2. Whole Woman’s Health Hellerstedt

In the 2016 decision Whole Woman’s Health v. Hellerstedt, the Court reviewed two previability abortion regulations of Texas law, House Bill 2 (HB 2): (1) a regulation requiring that abortion providers have admitting privileges at a hospital within thirty miles of the abortion facility, and (2) a regulation requiring facilities to meet minimum standards for ambulatory surgical centers.[18]  These regulations were costly and difficult for providers to adhere to, causing almost half the abortion facilities in Texas to close following enforcement of HB 2.[19]  The Court applied Casey’s undue burden test to strike down HB 2, finding that the regulations unnecessarily blocked abortion access by directly impacting the financial sustainability of providers while providing no legitimate medical benefit.[20]

In striking down HB 2, Justice Breyer, writing for the majority, emphasized abiding by precedent, weighing the evidence in the record, and determining whether the regulations created a cognizable medical benefit that outweighed their burden on abortion access.[21]  In reviewing HB 2, the Hellerstedt Court took a holistic approach by considering the evidence at face-value as well as the overall larger impact of the regulations on abortion access.[22]  The Court determined that the regulation requiring hospital admitting privileges within thirty miles was illogical, considering that most procedures, particularly medication-abortions, have little to no complications.[23]  Any complications that do arise usually happen hours or even days after the procedure, when the patient is likely to go to a hospital near their home.[24]  Ultimately, the decision turned on the fact that Texas failed to provide evidence of any cognizable medical benefit from either of the regulations that would outweigh the burdens placed on providers.[25]

 3. Box PPINK Provides Insight Into How the Court Will Likely Decide June Medical Services

The current Supreme Court Justices recently decided an abortion case on May 28, 2019, in Box v. PPINK.[26]  The fetal tissue disposition regulation (HB 1337) at issue in Box barred abortion providers from disposing of fetal tissue as pathological waste, a less expensive process commonly used by providers.[27]  HB 1337 also required providers to comply with heightened requirements for storing and transporting human remains, forcing smaller providers to rely on private vendors in order to comply.[28]

These regulations will have the effect of making abortion in Indiana less accessible because the heightened disposition requirements would: (1) increase the cost that patients pay for procedures;[29] (2) force smaller providers to be at the will of private vendors who have the proper state licenses to dispose of human remains;[30] and (3) drive clinics to insolvency if they cannot afford to comply.[31]  In support of HB 1337, Indiana claimed to have a legitimate interest in “the humane and dignified disposal of human remains” over the substantive due process rights of about 1,294,000 people capable of pregnancy in the state.[32]  In upholding the fetal tissue disposition regulation, the Court deviated from precedent by expressly declining to consider the law under the undue burden standard and strict scrutiny review, as required by longstanding precedent regarding the fundamental right to abortion.[33]  To justify this deviation, the Court claimed that PPINK did not argue that the fetal disposition regulation was an undue burden on abortion access, and instead “litigated this case on the assumption that the law does not implicate a fundamental right and is therefore only subject to ordinary rational basis review.”[34]

The Court also invoked a footnote from clearly overturned precedent in Akron v. Akron Center for Reproductive Health[35] in which, while striking down a fetal tissue disposition regulation, the Akron Court claimed that states have a legitimate interest in fetal tissue disposition.[36]  The Court’s subsequent adoption of the undue burden test in Casey (1992) overturned Akron (1983) and set precedent invalidating state fetal disposition regulations, or any regulations, that make abortion less accessible without a cognizable medical benefit.[37]  By applying overturned precedent from a footnote in Akron while simultaneously abandoning the undue burden standard and strict scrutiny review, the Box Court deviated from the principles of stare decisis.  Such an overt rejection of precedent suggests a desire to specifically overturn Casey.[38]

Concurring in part and dissenting in part, Justice Ginsburg criticized the Box Court for failing to apply binding precedent, claiming they wasted judicial resources.[39]  Justice Ginsburg faulted the Court’s reasoning that it was bound by PPINK’s strategic litigation choices, when adherence to controlling precedent requires application of strict scrutiny review to cases involving the fundamental right of abortion, regardless of the parties’ filings.[40]  The Box decision was wrongly decided because subjecting Indiana’s disposition regulation to strict scrutiny review and the undue burden test, as required by the principles of stare decisis, would have yielded a different result.[41]  This decision provides alarming insight into what can be expected from this Court in June Medical Services v. Russo.

II. June Medical Services Russo

In the term following the Box decision, the U.S. Supreme Court granted certiorari to hear June Medical Services L.L.C. v. Russo.[42]  This was significant, considering that June Medical Services is a lawsuit challenging the exact same regulation in Hellerstedt—the hospital admitting privileges requirement—that was found unconstitutional only three years prior.[43]  Additionally, and to much surprise, the Court also granted Louisiana’s belated petition for certiorari to reconsider longstanding precedent from Singleton v. Wulff: whether abortion providers should have third-party standing to challenge abortion restrictions on behalf of patients (provider standing).[44]  If provider standing is eliminated, it will irreparably harm the reproductive rights landscape because abortion restrictions are primarily challenged by providers.[45]

A. Act 620 and its Rise Through the Courts

In 2014, a group of Louisiana-based abortion providers—including Hope Clinic in Shreveport—known collectively as “June Medical Services, L.L.C.” (June Medical Services) mounted a facial challenge[46] to Louisiana’s “Unsafe Abortion Protection Act” or Act 620.[47]  June Medical Services claimed that Act 620 placed an undue burden on abortion access by requiring every doctor who performed abortions in Louisiana to have active hospital admitting privileges within thirty miles of where abortions were performed.[48]  On April 26, 2017, the U.S. District Court for the Middle District of Louisiana permanently enjoined Act 620, finding it facially unconstitutional in light of the Hellerstedt decision.[49]  Louisiana then appealed the decision to the Fifth Circuit, which reversed the district court, finding the hospital admitting privileges requirement in Act 620 not unconstitutional under Hellerstedt.[50]  The Fifth Circuit determined that the Act does not impose a substantial burden on a large portion of people in Louisiana and that “[c]areful review of the record reveals stark differences between the [June Medical Services] record . . . and that which the Court considered in [Hellerstedt].”[51]

“In light of the Court of Appeals’s disregard for th[e] Court’s binding and squarely on point precedent,” June Medical Services submitted a writ of certiorari asking the Court to reverse the Fifth Circuit decision by granting summary reversal.[52]  A summary reversal would have vacated the Fifth Circuit’s holding without requiring a rehearing of the same question of law the Court considered three years prior.[53]  The Court not only declined to release a summary reversal, but it granted certiorari to hear oral arguments on the case.[54]  The only thing that has substantially changed since the Hellerstedt decision is the Court’s composition, with a more conservative-leaning majority on the bench than existed three years prior.[55]

B. Abortion Access if Act 620 is Upheld and Singleton is Overturned

June Medical Services and amici curiae against Act 620 point to the enormous burdens that hospital admitting privileges requirements may inflict on abortion access in Louisiana and the about 941,000 people capable of pregnancy residing in the State.[56]  If upheld, there will be just one doctor with hospital admitting privileges to provide roughly 10,000 abortions sought annually in the state.[57]  Additionally, requirements for hospital admitting privileges arguably give hospitals too much control over state-based abortion access.[58]  Opponents of the law argue that, like the Court found in Hellerstedt, Act 620 will drastically increase travel time and delay services in Louisiana, further obstructing abortion access in a state in which access is already very limited, and a majority of individuals who obtain abortion in the state are financially vulnerable women of color.[59]

The Court also granted Louisiana’s conditional cross-petition for certiorari,[60] urging the Court to reconsider longstanding precedent finding abortion providers have third-party standing to sue on behalf of patients.[61]  In 1976, three years after Roe was decided, the Court found that abortion providers generally have standing to sue on behalf of patients.[62]  The Court decided standing existed because of the uniquely close relationship between physicians and patients created by the medical and financial necessity of both parties and the constitutionally protected abortion decision in which the physician is intimately involved.[63]  In Singleton, the Court identified two main obstacles to abortion access that provider third-party standing alleviates, including: (1) public scrutiny, as patients are permitted to maintain their anonymity when providers challenge abortion restrictions; and (2) imminent mootness, considering lawsuits are lengthy and the patient loses grounds to sue as the gestation period of the unwanted pregnancy advances.[64]

C. March 4th, 2020 Oral Arguments in June Medical Services

The Court granted one hour for oral arguments on March 4, 2020: thirty minutes to Julie Rikelman from the Center for Reproductive Rights and Counsel for June Medical Services; fifteen minutes for Elizabeth Murrill on behalf of Stephen Russo, Interim Secretary of the Louisiana Department of Health and Hospitals; and a surprising fifteen minutes allocated for Deputy Solicitor General, Jeffrey B. Wall of the Trump Department of Justice, as amicus curiae in support of Louisiana and Act 620.[65]  Julie Rikelman began by presenting the theme of the case: respect for the Court’s precedent.[66]

 1. June Medical’s argument

Within the first three minutes of Rikelman’s allotted time, Justice Alito jumped directly to the issue of provider standing by asking Rikelman (but with the intonation of telling her) whether she felt provider standing was a conflict of interest.[67]  Rikelman responded that it is not a conflict of interest because the Court has squarely held in many cases that plaintiffs can sue if: (1) a plaintiff is subject to severe penalties under an unconstitutional rule; and (2) the plaintiff is directly regulated by the law.[68]  Rikelman explained that abortion providers are extremely regulated and are therefore the appropriate party to challenge a burdensome regulation.[69]  Throughout this exchange, Justice Alito doubled down on this line of questioning, focusing on abortion provider’s financial incentives rather than their duty to patients.[70]

In response to Justice Alito’s telling question, Rikelman explained that provider standing should not even be at issue in this case because “the state explicitly conceded third-party standing” when the case was before the district court.[71]  The state did so “strategically because it was attempting to take advantage of favorable Fifth Circuit precedent at the time because the Fifth Circuit had just upheld the Texas admitting privileges law.”[72]  Justice Ginsburg asked whether the delayed challenge of provider standing impacted June Medical Services, to which Rikelman responded that “it would be profoundly unfair to allow the state to raise the objection for the first time five years into this litigation.”[73]

Chief Justice Roberts transitioned away from the provider standing issue to Act 620 by asking Rikelman if she “agree[d] that the inquiry under Hellerstedt is a factual one that has to proceed state-by-state.”[74]  Chief Justice Roberts’s thought process came through in his line of questioning, showing he was debating whether the court should consider the benefits of the admitting privileges law as well as the burdens of its implementation in each state.[75]  Rikelman responded with two points: (1) the Court reasoned in Hellerstedt that the hospital admitting privileges law had no cognizable medical benefit and was unduly burdensome; and (2) a state-by-state analysis would contravene precedent, as the Court’s reasoning should not differ while considering a Louisiana hospital admitting privileges law that was identical to the Texas law challenged in Hellerstedt.[76]

Rikelman then noted that, like the Court found in Hellerstedt, the requirement that providers have hospital admitting privileges within thirty miles of the clinic has no medical benefit.  This is because of the low rate of complications from abortions, and is especially true considering that 40 percent of abortions in Louisiana are noninvasive medication-abortions with excellent safety records.[77]  Furthermore, like the Court found in Hellerstedt, the thirty-mile regulation is not medically necessary because any complications that do arise from abortion procedures would typically occur hours after the patient has already left the clinic.[78]  Thus, on the slim chance that a patient would go to the hospital for abortion complications, it would likely be one near their home, not one within the vicinity of the clinic.[79]

 2. Louisiana’s Argument

Elizabeth Murrill began by arguing that the Fifth Circuit was correct in finding that June Medical Services failed to meet its burden in showing that Act 620 was facially unconstitutional.[80]  Murrill explained that Louisiana decided to adopt the hospital admitting privileges requirement after considering evidence of provider health and safety violations and noncompliance with licensing rules, including testimony from doctors and former patients.[81]  She further explained that the hospital admitting privileges requirement would help ensure compliance.[82]  Murrill attempted to differentiate this case from Hellerstedt by claiming that the Fifth Circuit focused on how this law would guarantee abortion providers had proper credentials.[83]  Murrill also argued against provider standing, claiming that abortion providers “do not meet the modern, rigorous rule for third-party standing” and should not be provided an exemption from the rule.[84]

Justice Ginsburg asked Murrill to reconcile how the thirty-mile hospital admitting privileges requirement would improve this supposed evidence of malfeasance from abortion providers in light of the reality that, on the slim chance complications arise, the patient will likely already be home and not at or near the clinic.[85]  Murrill responded that the requirement is consistent with the expectations of all ambulatory and surgical centers licensed by the Louisiana Department of Health.[86]  Chief Justice Roberts asked Murrill if the benefits of this law would be the same in every state.[87]  Murrill responded affirmatively, and claimed the hospital admitting privileges requirement gave hospitals the power to guarantee providers are credentialed to perform abortions.[88]  Justice Sotomayor interrupted to clarify that there are already laws in place to ensure providers are credentialed and licensed to practice.[89]

Sotomayor also countered Murrill’s claims that the hospital admitting privileges requirement were necessary to remedy alleged evidence of provider malfeasance, stating that “the district court already looked at [the evidence] and found explanations that were adequate for each and didn’t come to the conclusions [the state] or the legislature did.”[90] Justice Sotomayor then raised the issue that the standard of review for the Fifth Circuit was not to reconduct factfinding, but rather to determine “whether there was a plausible basis in the record for the conclusions the district court reached.”[91]  Murrill did not have a response to this.

Justice Kagan asked Murrill to speak to the evidence in the record that Hope Clinic has served over 3000 individuals a year for twenty-three years, and about 70,000 individuals total, but only four individuals have ever required immediate hospital admittance.[92]  Murrill responded that there is evidence in the record that Hope Clinic does not track patient complications after they leave.[93]  Murrill went on to argue that the providers sabotaged their own applications for admitting privileges, and that it was not Act 620 that created the burden, but rather the inability of providers to comply with the law.[94]

Justice Breyer asked Murrill to point to her strongest example of an abortion provider in this case who sabotaged their own application—between Does 1 through 6—to support her argument.[95]  After Justice Breyer repeatedly explained his request, Murrill said that Doe 6 is the best example, because he is a provider who applied to only one out of the nine hospitals in New Orleans.[96]  Justice Sotomayor quickly retorted that Doe 6 is a doctor who only performs first trimester medication abortions, not surgical, and had not performed a surgical abortion in over twelve years.[97]  Justice Sotomayor said that the Louisiana medical expert testified in the record that doctors who only provide medication abortions and not surgical abortions would probably not be able to receive admitting privileges, because hospitals are unlikely to provide active surgical and admitting privileges to doctors who do not see patients.[98]  Justice Breyer followed up with this line of questioning, inquiring: If the Louisiana medical expert clearly testified that medication abortion providers would not receive privileges, why would Doe 6 apply for privileges?[99]  Without addressing this probe, Murill redirected the line of questioning for the remainder of her time to the issue of provider standing.[100]

 3. Oral Argument for Jeffrey Wall

The oral argument on behalf of the Trump Administration reiterated many of the points raised by Louisiana.  The Justices asked what medical benefit the thirty-mile admitting privileges law provides and Wall responded by claiming the need for continuity of care.[101]  The Justices asked why a doctor administering a medication abortion would need hospital admitting privileges, and Wall pivoted to the issue of provider standing, claiming that a for-profit provider does not have the same interests as a patient.[102]

Justice Breyer interrupted in frustration by asking Wall how he expected the Court to reject precedent set in Hellerstedt, Casey, and the eight cases on point in which the Court has found providers have standing.[103]  Justice Breyer exclaimed that the rule of law requires adherence to precedent and rhetorically asked Wall if he expected the Court to “go back and reexamine Marbury versus Madison.”[104]  Chief Justice Roberts derailed this line of questioning to repeat the query he asked Rikelman: Should the hospital admitting privileges law proceed to a state-by-state analysis?[105]  The remainder of Wall’s allotted time was spent discussing this issue.

III. The Court has Deviated From the Principles of Stare Decisis in Favor of Anti-Abortion Interests

In Box v. PPINK, the Court deviated from the foundational principles of stare decisis by upholding a previability abortion restriction with no cognizable medical benefit after considering the law under rational basis review, instead of the strict scrutiny standard that the fundamental right required.  The U.S. Supreme Court’s decision to grant certiorari in June Medical Services, to reconsider three-year-old precedent from Hellerstedt and forty-year precedent from Singleton, is an ominous sign of what is to come.[106]  The line of questioning employed during oral arguments provides further insight into the direction the conservative majority is likely to take.[107]

A. What the Oral Arguments in June Medical Services Tell Us

Justice Alito’s first question for June Medical Services—about whether abortion providers have a conflict of interest in challenging abortion restrictions—was, for all intents and purposes, a rhetorical question.  That is clearly what he believes, notwithstanding the reality that abortion providers are the most regulated medical professionals and the Court has found provider standing in at least eight cases on this point.[108]  Justices Gorsuch, Kavanaugh, and Thomas said little to nothing at all; given their records, however, they are likely to vote to uphold Act 620 and decide to eliminate provider standing.[109]  That leaves Chief Justice Roberts as the swing vote.

Chief Justice Roberts has his own history of fighting to eliminate abortion access.[110]  He has, however, communicated that he respects well-established precedent and is concerned about maintaining the integrity of the Court.[111]  Whether this concern is enough to pull him toward upholding Hellerstedt and Singleton precedent is uncertain, especially considering that the Chief Justice joined the Hellerstedt dissent when the case was decided in 2016.[112]  Chief Justice Roberts did not ask any questions about provider standing during oral argument for June Medical Services, which is surprising considering he has historically been conservative on the issue of standing.[113]

While the Court has granted nearly every request of the Solicitor General’s office to partake in Court arguments since 2010, Jeffrey Wall’s presence was inappropriate in this case, as his support of Act 620 was clearly based on ideological opposition to abortion rather than interest in public health.[114]  In the very brief motion requesting leave to participate in oral arguments, the Solicitor General’s office claimed that participation would provide the “federal perspective” on the questions presented to the Court.[115]  The motion also argued that participation in June Medical Services oral arguments would be consistent with the Solicitor General’s participation in Hellerstedt oral arguments, yet failed to mention that participation in that case was in support of abortion access.[116]  Despite clear evidence to the contrary, established precedent that his office had argued to support in 2016, and factual findings by the district court, Wall argued that Act 620 ensured continuity of care.[117]  Wall also repeatedly insinuated that abortion providers, though highly regulated, have a conflict of interest disqualifying good-faith efforts to represent the interests of patients.[118]  At best, Wall’s participation was unseemly and, at worst, his presence was meant to remind the conservative majority of precisely where the Trump Administration stands on the issue of abortion.[119]

Justice Breyer, who wrote the opinion in Hellerstedt, communicated obvious annoyance that the Court was reconsidering an identical question of law decided three years prior.  His frustration came across in his lines of questioning, his reaction to Murrill’s failure to answer his questions promptly, and his sardonic question: “[Y]ou really want us to . . . go back and reexamine Marbury versus Madison[?]”[120]  Justice Breyer—who values evidence-based logic and respects professional expertise, and employed these values in his Hellerstedt opinion—wanted a clearly defined reason why the constitutionality of the hospital admitting privileges law should be a state-by-state analysis.[121]

Justice Sotomayor’s exceptional attention to the record and her clarity on the appropriate standard of review is proof that diversity of experience on the Supreme Court is incredibly valuable.[122]  Her experience as a trial court judge was evident in this case, as she continuously asked Louisiana to explain why the Court should accept the Fifth Circuit’s decision to engage in factfinding, an act reserved for the district court, and why the Court was being asked to interpret the record when the appropriate standard of review was for the Court to consider and interpret the principles of the law.[123]  As Justice Sotomayor elucidated, the district court had already determined that Louisiana providers had appropriate justification for their purportedly malfeasant behavior.[124]  Thus, Louisiana’s reasoning for the hospital admitting privileges regulation—that Louisiana providers are particularly delinquent, necessitating heightened regulation—was insufficient.[125]

Owing to her knowledge of the record, Justice Sotomayor was also able push back when Murrill told Justice Breyer that Doe 6, a doctor who provides medication abortions, was her best example of a doctor who had sabotaged his own ability to get hospital admitting privileges.[126]  As Justice Breyer reminded Murrill, Louisiana’s own medical expert testified that medication abortion providers are unlikely to receive hospital admitting privileges because they do not frequently have patients admitted to the hospital.[127]  This point undercut the entire argument for Act 620 and exposed the faulty reasoning and logical leaps that Louisiana was making in this case.

Throughout the arguments, Justice Kagan repeatedly underscored Hellerstedt precedent: that the Court has already determined that hospital admitting privileges are unnecessarily burdensome, as most abortions have no complications, and when they do, the complications usually occur long after the patient has left the clinic.[128]  On multiple occasions, Justice Kagan highlighted how the hospital admitting privileges law in Louisiana did not meet the state’s purported interest in rooting out malfeasance of providers.[129]  Justice Ginsburg’s line of questioning placed the hospital admitting privileges law within the framework of reality, as she drilled down on the failure of Louisiana to provide a cognizable medical benefit for the law beyond the reasons considered in Hellerstedt.[130]  While the liberal wing of the Supreme Court did its due diligence in questioning Louisiana and the Trump Administration appropriately, ultimately the decision will likely come down to Chief Justice Roberts, and whether or not he chooses to join his conservative colleagues.

B. The Potential Impact of June Medical Services on Abortion Access

If the Court upholds Act 620, the effects will not only shatter abortion jurisprudence, but will also be disastrous for the approximately 940,460 people capable of pregnancy in Louisiana, who will be left with one provider for the 10,000 abortions sought annually in the state.[131]  It is inconceivable to expect one doctor to provide care for the roughly 10,000 people seeking abortions in Louisiana each year.  Even this option virtually disappears when considering that the remaining doctor has already stated that he will likely retire out of fear for his safety.[132]  If upheld, Act 620 will lead to increased wait times, delays in care, or force people to travel significantly increased lengths to distant clinics, likely out of state, in order to obtain an abortion.[133]  State laws requiring hospital admitting privileges, like Act 620, do not make abortion safer; rather, they impose burdens that effectively obstruct access to the constitutionally protected right to abortion.[134]

These economic and logistical burdens disproportionately impact people of color and financially vulnerable individuals, as nearly half of all abortions in 2014 were obtained by individuals below the federal poverty level and 62 percent of abortions were sought by women of color.[135]  This dynamic is particularly exacerbated in Louisiana, where 70 percent of abortions in 2018 were obtained by women of color and at Hope Clinic in Shreveport, one of the last three clinics in the state, 70–90 percent of patients live below the federal poverty level.[136]  These statistics highlight the true intent of Act 620: to eliminate abortion access in Louisiana through legislation that targets people of color and financially vulnerable individuals.

Requirements for hospital admitting privileges give hospitals the unconstitutional authority to impose religious or political ideologies on medical practitioners by setting requirements that abortion providers, particularly medication abortion providers, are unable to meet.[137]  As held by the Hellerstedt Court, these requirements are an undue burden on abortion access, considering that the majority of abortions are safer than a typical colonoscopy procedure and that any complications normally appear days later, at which point the patient is likely to go to a hospital near home and not the abortion provider.[138]

If the Court upholds Act 620, the constitutionality of hospital admitting privileges requirements will be conducted on a state-by-state basis and the Hellerstedt decision will either be explicitly overturned or be rendered ineffective precedent.  This outcome will undercut the credibility of the Court and the federal judiciary.  The Court will signal to lower courts that, particularly in regard to abortion cases, binding Court precedent may be circumvented if lower courts do not like the decision.[139]  If the Court affirms the Fifth Circuit’s decision, common-sense and history suggest that anti-abortion states across the country will pass their own laws to mirror Louisiana’s admitting privileges requirement.  Each of these laws will necessitate individual challenges and state-specific analyses to determine their constitutionality.

If Singleton is overturned, and the burden falls on patients willing to upend their lives to challenge abortion restrictions on their own, without the support of providers, how can individuals possibly maintain faith that their reproductive health concerns will be considered by a fair and impartial judiciary?[140]  It is significant that the Court granted certiorari on the issue of provider standing, because Louisiana did not contest provider standing throughout the last five years of this litigation, and only raised the issue after June Medical Services filed a petition for certiorari with the Supreme Court.[141]  Louisiana did not contest provider standing at the Fifth Circuit, nor did it raise the issue the first time the case was before the Supreme Court, when Chief Justice Roberts granted the temporary stay of Act 620 in 2016.[142]  Louisiana waited to raise the issue of provider standing until this case was before a Court with a conservative majority, established by the Trump Administration’s nominations of then-Judges Neil Gorsuch and Brett Kavanaugh to the bench.  In the face of the conservative majority’s palpable and well-documented hostility toward abortion, with the separation of powers becoming increasingly muddied and undefined, individuals challenging abortion restrictions cannot possibly expect a fair and impartial judiciary.

Conclusion

This case is not only about respect for precedent and the rule of law, but also the appropriate separation of powers between the executive and judicial branches of government.  If the only thing that has changed since Hellerstedt is the composition of our Supreme Court, what does that say for the impartiality, predictability, and credibility of the federal judiciary if it is overturned?  Should the position of the Trump Administration, which argued in support of a Louisiana abortion restriction from five years ago and has since appointed two conservative Justices, be relevant in Supreme Court decisions?  Jeffrey Wall’s presence was a threat: The Trump Administration wants Justices Kavanaugh and Gorsuch to remember who put them on the Supreme Court, and to keep that in mind when deciding.  As Justice Ginsburg’s brief yet cogent partial dissent in Box v. PPINK articulated: The Court is not bound by the litigation strategies of parties but by the precedent of the Supreme Court.[143]  Justice Ginsburg’s sentiment is applicable to June Medical Services, as the Court’s granting of certiorari to reconsider well-established precedent only after a conservative majority is established, flies in the face of the principles of stare decisis and separation of powers.

As a law student, I have many questions. The most unsettling takeaway from June Medical Services is the context within which the decision to grant certiorari was made, which underscores the thesis of this Article: If the Court is willing to reconsider the same question of law decided three years ago in Hellerstedt, as well as forty-year precedent in Singleton that is nearly as old as the right to abortion itself, what does that say about how the Court views the principles of stare decisis in relation to abortion jurisprudence?  As Justice Breyer proffered: Shall we reexamine Marbury versus Madison?



[1].        Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1793 (2019) (Ginsburg, J., concurring in part and dissenting in part) (internal quotation marks and alterations omitted) (quoting Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 917 F.3d 534, 535 (7th Cir. 2018) (Wood, J., concurring)).

[2].        The cohort included members of If/When/How: Lawyering for Reproductive Justice chapter organizations from various law school campuses.  Kelley Huber & Bridget Winkler, March 4th Was More Than a Rally.  It Was a Reminder That the Future of RJ Lawyering Has Arrived., If/When/How: Lawyering for Reprod. Just. Blog (Mar. 13, 2020), https://www.ifwhenhow.org/scotus-june-medical-rally-law-students [https://perma.cc/GX77-8V5Q].

[3].        Staci Zaretsky, Orrin Hatch Makes Snide Law School Comment to Protester Who Interrupted Kavanaugh Confirmation Hearing, Above L. (Sept. 4, 2018, 11:43 AM), https://abovethelaw.com/2018/09/orrin-hatch-makes-snide-law-school-comment-to-protester-who-interrupted-kavanaugh-confirmation-hearing[[https://perma.cc/6QUS-5YS7].

[4].        A note on language: This article will primarily use non-gendered language, as individuals impacted by abortion restrictions do not necessarily identify with any specific gender.  Gendered language will only be employed when included in a quote, specified in a statistic, or to acknowledge a group of individuals, such as Black or Latina women, who are disproportionately impacted by abortion restrictions and fight for equity through solidarity within their demographic.  When gendered language is used, please recognize that trans and non-gender conforming individuals are included.  See Alina Salganicoff et al., The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found. (Jan. 24, 2020), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/QV6J-KGMR] (showing that, in 2014, approximately 64 percent of abortions were among black or Latina women, and 75 percent were among low-income patients); Alanna Vagianos, Women Aren’t The Only People Who Get Abortions, Huffington Post (June 7, 2019, 10:37 AM), https://www.huffpost.com/entry/women-arent-the-only-people-who-get-abortions_n_5cf55540e4b0e346ce8286d3 [https://perma.cc/7X6A-FB5T] (describing the need for inclusive language when discussing reproductive rights).

[5].        See Box, 139 S. Ct. at 1782.

[6].        See id. at 1781–82 (holding Indiana provided a legitimate basis for the disposition regulation under rational basis review and refusing to apply the undue burden standard as PPINK never argued HB 1337 implicated a fundamental right).

[7].        June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, 140 S. Ct. 35 (2019) (mem.).

[8].        136 S. Ct. 2292 (2016); see id. at 2310–11 (determining that a Texas statute—requiring providers to have admitting privileges at a hospital located no more than thirty miles from their abortion facility—placed an unconstitutional burden on abortion access).

[9].        428 U.S. 106 (1976).

[10].      Id. at 118 (holding that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision”).

[11].      See Adam Liptak, How Brett Kavanaugh Would Transform the Supreme Court, N.Y. Times, Sept. 2, 2018, at A1.

[12].      410 U.S. 113 (1973).

[13].      Id. at 155 (finding regulations limiting fundamental rights, such as the right to abortion, may only be justified by a compelling state interest).

[14].      Id. at 162–63.

[15].      505 U.S. 833 (1992).

[16].      Id. at 846.

[17].      See id. at 878 (finding that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right”).

[18].      Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016).

[19].      Id. at 2301–02 (determining that the admitting privileges requirement significantly decreased the geographical distribution of clinics and doubled the amount of people capable of becoming pregnant and living over fifty miles from a clinic).

[20].      Id. at 2302–03, 2318 (finding costs of constructing surgical centers to “most likely exceed” 1.5 million dollars, id. at 2302, and the cost of constructing a new clinic with surgical-center compliance to be about three million dollars, id. at 2303).

[21].      Id. at 2311–12.

[22].      See id. at 2301–03 (reviewing evidence including the geographical distribution of clinics, amount of abortions in Texas per year, population of Texas citizens capable of becoming pregnant, safety of abortion procedures before HB 2, cost of complying with the law, and the law’s proposed benefits).

[23].      See id. at 2311 (reviewing a collection of peer reviewed studies on first trimester abortions, which provided that the highest rate of major complications—including complications requiring hospital admission—was less than one-quarter of 1 percent, and the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1 percent).

[24].      See id. (considering evidence from a study that found of 54,911 abortion patients included in the study, only fifteen required immediate transfer to the hospital and most patients who need to go to the hospital after an abortion will do so near home).

[25].      Id. at 2318.

[26].      Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019).

[27].      See Ind. Code § 16-41-16-5 (2019); H.R. 1337, 119th Gen. Assemb., 2d Reg. Sess. (Ind. 2016) (enacted).

[28].      See §§ 16-37-3-12, 16-37-3-13; Ind. H.R. 1337.

[29].      See Whole Woman’s Health v. Hellerstedt, 231 F. Supp. 3d 218, 230 (W.D. Tex. 2017) (determining the fetal tissue disposition regulation would increase the overall cost of abortion and impact the frequency with which clinics can provide abortions within certain regions).

[30].      See id. at 231–32 (explaining that vendors must have proper permits or registrations to transport fetal tissue and personal religious affiliations as well as inexperience with transporting fetal tissue, can impact the availability, willingness, or cost of vendors with permits to transport remains).

[31].      Id. at 230–31 (recognizing the burdens of requiring providers to rely on vendors with the proper permits or registrations to transport, store, or dispose of human remains).

[32].      Planned Parenthood of Ind. & Ky., Inc. v. Box, 888 F.3d 300, 308 (7th Cir. 2018), rev’d in part, 139 S. Ct. 1780 (2019); see Indiana, March Dimes Peristats, https://www.marchofdimes.org/peristats/ViewSubtopic.aspx?reg=18&top=2&stop=1&lev=1&slev=4&obj=1 [https://perma.cc/JF4Z-7LGC>](last visited Feb. 12, 2020) (providing the population of women of childbearing age in Indiana in 2016 was 1,293,192).

[33].      See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1781–82 (2019).

[34].      Id. at 1781; see also Respondents’ Brief in Opposition to Petition for Writ of Certiorari at 6, Box, 139 S. Ct. 1780 (No. 18-483), 2018 WL 6445987, at *6–7 (explaining that PPINK did not argue the fetal tissue disposition regulation burdened the fundamental right to abortion on appeal because the district court reviewed the regulation alongside a previability abortion ban also enacted in HB 1337, and ultimately struck down the entire bill by determining that the abortion ban violated the fundamental right to abortion and the disposition regulation violated due process by imposing obligations on providers that were not rationally related to a legitimate state interest).

[35].      462 U.S. 416 (1983), overruled by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[36].      See id. at 451, 452 n.45 (striking down a “vague” disposition regulation, id. at 451, but purporting that more specific regulations may suffice to further a state’s “legitimate interest in proper disposal of fetal remains,” id. at 452 n.45).

[37].      See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878, 883 (1992) (overruling Akron, id. at 883, and finding that any “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” id. at 878).

[38].      See Box, 139 S. Ct. at 1781–82 (holding the Seventh Circuit erred by failing to recognize Akron precedent that states have a legitimate interest in regulating fetal tissue and PPINK’s argument failed to implicate the undue burden test from Casey).

[39].      Id. at 1793 (Ginsburg, J., concurring in part and dissenting in part) (stating the Court erred in upholding the disposition regulation when application of the undue burden standard would have yielded a different judgment).

[40].      See id. (finding this case involves the fundamental right to choose abortion, therefore heightened review is in order).

[41].      See id. (stating the Court erred in upholding the disposition regulation when application of undue burden standard would have yielded a different judgment).

[42].      June Med. Servs. L.L.C. v. Gee, 140 S. Ct. 35 (2019) (mem.) (granting petition of certiorari on October 4, 2019, and allotting one hour for oral arguments).

[43].      See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2310–11 (2016); June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 791 (5th Cir. 2018), cert. granted, 140 S. Ct. 35 (2019).

[44].      Singleton v. Wulff, 428 U.S. 106, 118 (1976) (concluding that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision”).

[45].        See Opposition to Conditional Cross-Petition for a Writ of Certiorari at 2, June Med. Servs., 140 S. Ct. 35 (No. 18-1460) (providing that “[a]bortion providers’ third-party standing to raise the constitutional rights of their patients is foundational to the Court’s abortion jurisprudence and in keeping with the Court’s time-honored precedents on third-party standing”); Elizabeth Nash & Megan K. Donovan, Admitting Privileges Are Back at the U.S. Supreme Court With Serious Implications for Abortion Access, Guttmacher Inst. (Dec. 3, 2019), https://www.guttmacher.org/article/2019/10/admitting-privileges-are-back-us-supreme-court-serious-implications-abortion-access [https://perma.cc/47T8-VST5].

[46].      June Med. Servs. L.L.C. v. Gee, 814 F.3d 319, 321 & n.2 (5th Cir.), stay of injunction vacated, 136 S. Ct. 1354 (2016) (mem.).

[47].      La. Stat. Ann. § 40:1601.10 (2019).

[48].      Id.; June Med. Servs., 814 F.3d at 321.

[49].      June Med. Servs. L.L.C. v. Kliebert, 250 F. Supp. 3d 27, 38 (M.D. La. 2017), rev’d sub nom. June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018).

[50].      June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 815 (5th Cir. 2018), cert. granted, 140 S. Ct. 35 (2019).

[51].      Id. at 791.

[52].      Petition for a Writ of Certiorari at 20, June Med. Servs. L.L.C. v. Gee, 140 S. Ct. 35 (2019) (No. 18-1460).

[53].      See Glossary of Supreme Court Terms, SCOTUSblog, https://www.scotusblog.com/reference/educational-resources/glossary-of-legal-terms [https://perma.cc/Q458-X87T] (last visited Feb. 16, 2020).

[54].      See June Med. Servs., 140 S. Ct. 35 (granting petition of certiorari and allotting one hour for oral arguments).

[55].      See Linda Greenhouse, A Supreme Court Abortion Case That Tests the Court Itself, N.Y. Times (Oct. 10, 2019), https://www.nytimes.com/2019/10/10/opinion/supreme-court-abortion.html [https://perma.cc/XGG8-TNPU].

[56].      See Louisiana, March Dimes Peristats, https://www.marchofdimes.org/peristats/View Subtopic.aspx?reg=22&top=2&stop=1&lev=1&slev=4&obj=1 [https://perma.cc/ZE67-4YGR] (last visited Feb. 12, 2020) (providing that the population of women of childbearing age in Louisiana in 2016 was 940,460); cf. Guttmacher Inst., Fact Sheet: Induced Abortion in the United States 1 (2019), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf [https://perma.cc/JR7N-736N] (providing that women of color accounted for 62 percent of abortion procedures in 2014).

[57].      Brief of Amici Curiae National Women’s Law Center & 72 Additional Organizations Committed to Equality & Economic Opportunity for Women in Support of June Medical Services L.L.C. at 15, June Med. Servs. L.L.C. v. Gee, Nos. 18-1323, 18-1460 (U.S. Dec. 2, 2019) [hereinafter Brief of Amici Curiae National Women’s Law Center] (arguing that “[o]ne physician cannot provide care for the roughly 10,000 . . . abortions [sought] in [Louisiana] each year”).

[58].      See Daniel J. Glass, Note, Not in My Hospital: The Future of State Statutes Requiring Abortion Providers to Maintain Admitting Privileges at Local Hospitals, 49 Akron L. Rev. 249, 285 (2016) (arguing that a hospital’s ability to deny privileges “unconstitutionally interfere[s] with the physician’s property interest in her medical license, by setting requirements that an abortion provider is unable to meet”).

[59].      See Brief of Amici Curiae National Women’s Law Center, supra note 57, at 16–17.  At the Hope Clinic in Shreveport, 70–90 percent of patients live below the federal poverty level.  Id. at 16.  In 2018, about 70 percent of individuals in Louisiana who obtained an abortion were women of color, who are especially likely to be living in poverty—about 28 percent of Black women, 24 percent of Hispanic women, 12 percent of Asian women, and 22 percent of Native American women in the state live in poverty.  Id. at 16–17.  See also Rosemary Westwood, One of the Last Abortions in Louisiana?  Diary of a Woman From a Clinic Under Threat of Closure, Guardian (Mar. 2, 2020, 2:10 PM), https://www.theguardian.com/us-news/2020/mar/02/one-of-the-last-abortions-in-louisiana-diary-of-a-woman-from-a-clinic-under-threat-of-closure [https://perma.cc/48BW-CZ2W] (stating that “[t]here are just three abortion clinics left in Louisiana, which together provide between 8,000 and 10,000 abortions annually”).

[60].      June Med. Servs. L.L.C. v. Gee, 140 S. Ct. 35 (2019) (mem.) (granting petition for certiorari).

[61].      Conditional Cross-Petition at 1–2, June Med. Servs., 140 S. Ct. 35 (No. 18-1460), 2019 WL 2241856, at *1–2.

[62].      Singleton v. Wulff, 428 U.S. 106, 118 (1976).

[63].      Id. at 117–18.

[64].      See id.

[65].      Transcript of Oral Argument at 2, June Med. Servs. L.L.C. v. Russo, Nos. 18-1323, 18-1460 (U.S. Mar. 4, 2020); see Adam Liptak, The Supreme Court Has a Special ‘Friend’: The Justice Department, N.Y. Times (Mar. 9, 2020), https://www.nytimes.com/2020/03/09/us/supreme-court-solicitor-general-amicus.html [https://perma.cc/KB2Z-D9E9] (reporting on a recent study that determined that solicitor general participation in Supreme Court arguments is inappropriate when, like in June Medical Services, the connection to the federal government is “tenuous and the motivation for the solicitor general entering the case may be ideological” (quoting Darcy Covert, who co-conducted the study)).

[66].      Transcript of Oral Argument, supra note 65, at 4.

[67].      See Oral Argument at 3:02, June Med. Servs., Nos. 18-1323, 18-1460, https://www.oyez.org/cases/2019/18-1323 [https://perma.cc/UXN7-DCKC].

[68].      Transcript of Oral Argument, supra note 65, at 8.

[69].      See id. at 10–11.

[70].      See id. at 6–8 (alluding that, because abortion providers offer transactional medical services to patients, there is an inherent conflict of interest when providers challenge abortion restrictions on behalf of patients).

[71].      Id. at 12–13.

[72].      Id. at 13–14.

[73].      Id. at 14.

[74].      Id. at 17 (emphasis added).

[75].      See id. at 17–18.

[76].      See id. at 18.

[77].      See id. at 29–30.

[78].      See id. at 29.

[79].      See id.

[80].      Id. at 31–32.

[81].      Id. at 32.

[82].      Id. at 31–32.

[83].      Id. at 33–34.

[84].      Id.

[85].      See id. at 34.

[86].      Id. at 34–36.

[87].      Id. at 36.

[88].      Id. at 36–37.

[89].      See id. at 37.

[90].      Id. at 41–42.

[91].      Id. at 42.

[92].      Id. at 45–46.

[93].      Id. at 46.

[94].      See id. at 50.

[95].      Id. at 48–50.

[96].      Id. at 50.

[97].      Id. at 51.

[98].      Id. at 51–52.

[99].      See id. at 52.

[100].    Id. at 53–54.

[101].    Id. at 56–57.

[102].    Id. at 60–61.

[103].    Id. at 61–62.

[104].    Id. at 62 (emphasis added).

[105].    Id. at 63.

[106].    See id. at 62–63.

[107].    See, e.g., Oral Argument, supra note 67, at 3:37, 4:02 (Justice Alito responding to Rikelman’s argument—that abortion providers are the appropriate party to challenge abortion restrictions—with sarcastic incredulity, by twice repeating he found it “amazing” that Rikelman did not think abortion providers have a financial conflict of interest).

[108].    See Transcript of Oral Argument, supra note 65, at 61; Kylie Cheung, It’s Official: Abortion is More Regulated Than Any Other Health Care Service, Ms. Mag. (Feb. 28, 2018), https://msmagazine.com/2018/02/28/abortion-is-more-regulated-than-any-other-health-care-service-according-to-study-stating-the-obvious [https://perma.cc/TFA6-CTEB].

[109].    See Adam Liptak, Justices Give Few Hints on How They Will Rule on Louisiana Abortion Law, N.Y. Times (Mar. 9, 2020), https://www.nytimes.com/2020/03/04/us/supreme-court-abortion.html?smid=pc-thedaily [https://perma.cc/NCJ5-QX4W]; Jessica Mason Pieklo, The Latest Supreme Court Decision on Abortion is Good News, But Don’t Get Too Comfortable, Rewire News (July 1, 2019, 10:45 AM), https://rewire.news/article/2019/07/01/the-latest-supreme-court-decision-on-abortion-is-good-news-but-dont-get-too-comfortable [https://perma.cc/UC84-YLQ5].

[110].    See Dylan Scott, John Roberts is the Supreme Court’s New Swing Vote.  Is He Going to Overturn Roe v. Wade?, Vox (July 9, 2018, 9:00 AM), https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts [https://perma.cc/EFC6-EGWK] (discussing Chief Justice Roberts’s history and past statements on abortion).

[111].    See Jessica Mason Pieklo, Even Nonpartisan Groups Are Afraid of the Supreme Court’s Next Ruling on Abortion, Rewire News (Dec. 5, 2019, 9:45 AM), https://rewire.news/article/2019/12/05/even-nonpartisan-groups-are-afraid-of-the-supreme-courts-next-ruling-on-abortion [https://perma.cc/5BBT-XCM3].

[112].    Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2330 (2016) (Alito, J., dissenting, joined by Roberts, C.J. and Thomas, J.).

[113].    Chief Justice Roberts wrote a Comment in the Duke Law Journal in 1993 advocating for Article III statutory limits on standing and has consistently applied this conservative judicial philosophy when reviewing cases regarding standing before the Court.  John G. Roberts, Jr., Comment, Article III Limits on Statutory Standing, 42 Duke L.J. 1219 (1993); see, e.g., Clapper v. Amnesty Int'l USA, 568 U.S. 398, 422 (2013) (joining the conservative majority in finding that Amnesty International and other similar organizations lack standing to challenge a U.S. law facilitating government surveillance of Americans’ international communications without probable cause); Summers v. Earth Island Inst., 555 U.S. 488, 497, 500 (2009) (joining the majority in holding that environmental protection groups lack standing to challenge illegal logging procedures after finding the groups do not suffer injury to justify standing); see also David Franklin, Where John Roberts Really Stands, Wash. Post (Aug. 7, 2005), https://www.washingtonpost.com/wp-dyn/content/article/2005/08/05/AR2005080502004.html [https://perma.cc/4XDV-GNMG] (describing the history of John Roberts’s conservative approach to standing); Linda Greenhouse, For the Chief Justice, a Dissent and a Line in the Sand, N.Y. Times (Apr. 8, 2007), https://www.nytimes.com/2007/04/08/weekinreview/08greenhouse.html [https://perma.cc/QN53-F5N8] (stating “[t]hat Chief Justice Roberts cast a dissenting vote in Massachusetts v. Environmental Protection Agency was no great surprise,” in light of his conservative history on standing).

[114].    See generally Transcript of Oral Argument, supra note 65, at 55–68 (demonstrating unwavering support of Act 620, Wall argued for increased state restrictions on abortions throughout his oral arguments and went to great lengths to argue in favor of overturning long-standing precedent that would gut the primary method for challenging abortion restrictions); Liptak, supra note 65.

[115].    Motion of the United States for Leave to Participate in Oral Argument as Amicus Curiae & for Divided Argument at 2, June Med. Servs. L.L.C. v. Gee, Nos. 18-1323, 18-1460 (U.S. Jan. 2, 2020).

[116].    Id.

[117].    Transcript of Oral Argument, supra note 65, at 57.

[118].    See, e.g., id. at 61, 63.

[119].    Cf. Roxy Szal, June Medical Services v. Russo: A Recap of the Arguments Laid Out by Both Sides at the Supreme Court, Ms. Mag. (Mar. 4, 2020), https://msmagazine.com/2020/03/04/june-v-russo-a-recap-of-todays-arguments-laid-out-by-both-sides [https://perma.cc/Y87X-5Q8N] (recapping the oral arguments, Jessica Mason Pieklo claimed that Jeff Wall’s presence “[sent] a signal . . . that the Department of Justice is exceedingly interested in abortion rights jurisprudence and litigation”).

[120].    Transcript of Oral Argument, supra note 65, at 48–49, 62 (emphasis added).

[121].    See I. Glenn Cohen, Make It Work!: Breyer on Patents in the Life Sciences, 128 Harv. L. Rev. 418, 419 (2014) (providing that a “defining characteristic of Justice Breyer’s approach to the world that is evident in his opinions is his commitment to getting things right based on evidence and expertise”).

[122].    See Transcript of Oral Argument, supra note 65, at 41–42, 51 (evoking her experience as a trial court judge, Justice Sotomayor rendered the appropriate standard of review for the Fifth Circuit, id. at 41–42, and recalled specific details in the record about Doe 6, id. at 51); Press Release, Office of the Press Sec’y, The White House, Background on Judge Sonia Sotomayor (May 26, 2009), https://obamawhitehouse.archives.gov/the-press-office/background-judge-sonia-sotomayor [https://perma.cc/Z7U9-EFPB] (describing Justice Sotomayor’s experience as a “sharp and fearless” trial court judge).

[123].    Transcript of Oral Argument, supra note 65, at 41–42.

[124].    Id.

[125].    See id. at 32–33.

[126].    Id. at 50–51.

[127].    Id. at 52.

[128].    See, e.g., id. at 42–43.

[129].    See, e.g., id. at 41–43, 45–46; see also Ian Millhiser, Abortion Rights Had a Surprisingly Hopeful Day in the Supreme Court, Vox (Mar. 4, 2020, 1:36 PM), https://www.vox.com/2020/3/4/21164699/abortion-supreme-court-hopeful-june-medical-services-russo-chief-justice-roberts [https://perma.cc/3GC9-L7V7] (describing how the law’s requirement that abortion providers have admitting privileges undercuts the state’s argument, as many hospitals only provide privileges if doctors frequently admit patients).

[130].    See Transcript of Oral Argument, supra note 65, at 44–46, 56–57.

[131].    See Brief of Amici Curiae National Women’s Law Center, supra note 57, at 15 (arguing that “[o]ne physician cannot provide care for the roughly 10,000 . . . abortions [sought] in [Louisiana] each year”); Louisiana, supra note 56 (providing that the population of women of childbearing age in Louisiana in 2016 was about 940,460).

[132].    See June Med. Servs. L.L.C. v. Kliebert, 250 F. Supp. 3d 27, 53 (M.D. La. 2017), rev’d sub nom. June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018) (describing how Doe 3, the only abortion provider who could practice if Act 620 is upheld, testified that he has already received multiple threats from anti-abortion activists and would stop working out of fear for his safety if he was the only provider in the state).

[133].    Brief of Amici Curiae National Women’s Law Center, supra note 57, at 15–16.

[134].    See Nash & Donovan, supra note 45 (explaining how unnecessary abortion restrictions “ultimately harm people seeking abortion care by shutting down clinics and exacerbating already significant gaps in access around the country”).

[135].    Brief of Amici Curiae National Women’s Law Center, supra note 57, at 16–17; Guttmacher Inst., supra note 56, at 1.

[136].    Brief of Amici Curiae National Women’s Law Center, supra note 57, at 16; see also Westwood, supra note 59 (stating that “[t]here are just three abortion clinics left in Louisiana, which together provide between 8,000 and 10,000 abortions annually”).

[137].    See Glass, supra note 58.

[138].    Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016).

[139].    See Petition for a Writ of Certiorari, supra note 52, at 5–6, 15–16 (providing that the district court determined Act 620 is identical to the hospital admitting privileges law found unconstitutional in Whole Woman’s Health, id. at 5–6, but, despite this factual finding and Court precedent, the Fifth Circuit panel majority upheld Act 620, id. at 15–16).

[140].    See Opposition to Conditional Cross-Petition for a Writ of Certiorari, supra note 45, at 2–3 (arguing that “given the obstacles that [patients] face in asserting their rights to abortion, the continued ability of abortion providers to assert their patients’ rights is vital to the constitutional right to access safe and legal abortion”).

[141].    See Transcript of Oral Argument, supra note 65, at 12–15.

[142].    Id. at 14–15.

[143].    See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1793 (2019) (Ginsburg, J., concurring in part and dissenting in part).

Winkler-67

About the Author

Bridget Winkler is a 3L at American University Washington College of Law and President of the Washington College of Law Chapter of If/When/How: Lawyering for Reproductive Justice. Winkler founded the People’s Judiciary, a project developed to educate and activate law students around the federal judiciary. She is committed to using her privilege as a legal professional to uplift the voices of impacted people in the fight for reproductive justice.

By LRIRE