Twisting Supreme Court precedent

The U.S. Supreme Court sided against the state of Louisiana Monday, striking down a regulation that required abortion providers to have admitting privileges at a local hospital.

In its 5-4 ruling in June Medical Services v. Russo, the court ruled the law would burden women seeking abortions and conferred “no significant health benefit.” In the court’s plurality opinion, Justice Stephen Breyer pointed to the precedent from past abortion cases: Health regulations that place an “undue burden” on abortion access are unconstitutional.

Chief Justice John Roberts, the swing vote in the case, sided with the liberal wing of the court but filed a concurring opinion explaining his rationale.

While Louisiana never actually enforced the law, the court accepted the plaintiffs’ argument that the requirement would cause two of the state’s three abortion providers to shut down. If that happened, lawyers for the abortionists argued, women would have to travel farther for an abortion and would face “longer waiting times, and increased crowding.” Such delays, the court said, “might increase the risk that a woman will experience complications.”

The decision does not directly affect Roe v. Wade but would have held abortion providers to the same requirements as other outpatient medical providers. Pro-life advocates say it will imperil Louisiana women’s health and sets a bad precedent for other states looking to adopt similar health standards. In separate opinions, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas dissented. Each criticized some part of the plurality’s reasoning.

According to Katie Glenn with Americans United for Life, the ruling’s effect on other state laws regulating abortion is not yet clear. More abortion providers or pro-abortion organizations will likely file cases on behalf of women. The ruling may have a chilling effect on state lawmakers.

The ruling most affects women who experience complications during abortions. If abortionists don’t have hospital admitting privileges, a woman may have to go to a hospital by herself and emergency room physicians may not have vital medical information.

“No woman should be given substandard care,” Glenn said. “We see absolutely terrible doctors who just haven’t lost their license yet … and the abortion industry shouldn’t be protecting these people.”

While calling the outcome disappointing, March for Life President Jeanne Mancini said the decision should not discourage lawmakers from trying to regulate abortion providers: “This is really terrible for women but I don’t think this impacts other pro-life laws. I do not think this is the moment to back down.”

In his concurring opinion, Roberts chalked his judgment up to precedent: In the 2016 case Whole Woman’s Health v. Hellerstedt, the court ruled that a nearly identical law burdened abortion access. Roberts admitted that he still believes Hellerstedt “was wrongly decided” (he dissented in that case).

But he said that the principle of stare decisis “instructs us to treat like cases alike, absent special circumstances.” The question facing the court was not whether Hellerstedt “was right or wrong, but whether to adhere to it in deciding the present case,” Roberts wrote in his opinion. But conservative court watchers and even fellow justices criticized that rationale.

Justice Clarence Thomas slammed the plurality for dodging the question of whether abortion providers can challenge abortion regulations on behalf of women. During oral arguments, Louisiana’s attorneys argued abortionists lacked standing to sue on behalf of women.

Breyer wrote for the plurality that the abortionists have an incentive to act “as advocates of the rights of third parties who seek access to their market or function.” He argued that because abortion providers are the ones who must seek admitting privileges, “they are far better positioned than their patients to address the burdens of compliance.”

But Thomas said the high court should not have “reflexively allowed abortionists and abortion clinics to vicariously assert a woman’s putative right to abortion.”

“Our abortion precedents are grievously wrong and should be overruled,” Thomas concluded.

Justice Samuel Alito took the rest of the court to task for ignoring the conflicts of interest central to the case.

“The idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning,” he wrote. He noted emails from one of the abortionists associated with June Medical Services revealed only a half-hearted attempt to obtain admitting privileges, and only after an attorney advised it.

“The lawyers think it is important that I at least have an application pending at a hospital,” the email read.

The plaintiffs’ argument that Louisiana’s law is unconstitutional “is exactly the argument one would expect from a business that wishes to be free from burdensome regulations,” Alito wrote.

Dr. Robert Marier, the former director of the Louisiana Board of Medical Examiners, testified that hospitals use the process of granting admitting privileges as a way to determine a doctor’s competency, a much more thorough process than what Louisiana abortion providers currently enact, Alito noted. He said June Medical has hired people ill-qualified to perform abortions, including a radiologist and an ophthalmologist.

Alito wrote that the grand jury overseeing the grisly case of abortionist Kermit Gosnell found “closer supervision would have uncovered Gosnell’s egregious health and safety violations.”

Justice Neil Gorsuch laid out health concerns women faced in Louisiana.

Prior to passing the law, Louisiana’s legislature heard testimony from women who had faced dire situations as a result of negligent abortion providers.

Gorsuch recounted abortionists’ health violations: failing to sterilize equipment, not monitoring patients’ vital signs, and unauthorized staff improperly administering medications. One woman testified that while she was hemorrhaging, an abortion provider told her to “get out.” When she went to an emergency room, a physician found body parts the abortion provider had failed to remove.

An abortionist told another patient who described severe abdominal pain to “go home and lie down.” When she went to an emergency room, a physician found a uterine tear that required an emergency hysterectomy.

Gorsuch said the court wrongly balanced some women having to go out of their way to obtain abortions against other “women’s emergency hysterectomies.”