A Dispiriting Day for the Pro-Life Movement at the Supreme Court

Not good! The author is seasoned litigator and a pro-life conservative.

From The Dispatch

By David French

Oral arguments regarding a Louisiana law give little hope for a transformation of abortion jurisprudence.

There’s an old legal adage that you can’t always predict the outcome of a case based on a judge’s questions at oral argument. It’s entirely true but not entirely comforting. You can still usually predict the outcome of a case based on oral argument, and litigants definitely leave the courtroom feeling either encouraged or discouraged based on the justices’ inquiries.

After reading the oral argument transcript in June Medical Services v. Russo, the first significant abortion-rights case before the Supreme Court since Justice Anthony Kennedy retired, pro-life Americans have little room for optimism. It appears their best-case scenario is a very small, incremental victory. The worst-case (and perhaps most likely case) is a stinging defeat that reaffirms the constitutional status quo in abortion jurisprudence. 

The case presents an almost-perfect test for the post-Kennedy court. In 2016, the court struck down a Texas law that required abortion doctors to hold admitting privileges at a hospital located within 30 miles of the abortion clinic. The court decided the case, Whole Women’s Health v. Hellerstedt, by a 5-3 margin (the decision came after Justice Scalia’s death and before his replacement). 

In 2018, the 5th Circuit Court of Appeals unexpectedly upheld Louisiana’s admitting privileges law, which also required abortion doctors to hold admitting privileges at a hospital located within 30 miles of the abortion clinic. The court found that under the specific facts applicable to the Louisiana law, it did not violate Whole Women’s Health. (For example, the Texas law would have caused all but eight of Texas’s 40 abortion clinics to close, whereas only one Louisiana abortion doctor was unable to obtain privileges.) 

The Louisiana admitting privileges law is designed to make it easier for doctors to admit patients into local hospitals in the event of complications. It’s roughly equivalent to the laws governing ambulatory surgery centers in the state. The law’s opponents claim that admitting privileges requirements provide no discernible medical benefit, in part because hospital admissions after abortions are relatively rare.

When the Supreme Court accepted review, it teed up a critical test for the new court. Justice Gorsuch had replaced Justice Scalia, and Justice Kavanaugh had replaced Justice Kennedy. Would the new justices chart a different course on abortion jurisprudence? Or would they apply existing precedent? The different substantive outcomes could tell us a great deal about the court’s future abortion jurisprudence:

If the court upholds Whole Women’s Health and uses it to strike down the Louisiana law, it would send a signal that abortion status quo will hold. Changing justices will not change the jurisprudence.

If the court upholds Whole Women’s Health but distinguishes the Louisiana law, holding that under the specific facts of the case that Louisiana’s law doesn’t impose an undue burden on a woman’s right to abortion access, then the pro-life cause will win a small, incremental victory. The abortion status quo will mostly hold. 

If, however, the court strikes down Whole Women’s Health—especially a mere four years after it was decided—then that indicate that the court was moving unmistakably and decisively away from prior precedent and would raise the possibility of a truly substantial, pro-life transformation of American abortion law. 

(Louisiana also challenged the standing of the plaintiffs in the case, arguing that the plaintiff abortion doctors didn’t have the legal right to sue to protect their patients’ abortion access, but only Justice Alito showed any real interest in that aspect of the case.)

The transcript made for interesting reading. Justices Sotomayor and Ginsburg were aggressive throughout, as was Justice Alito. Justices Gorsuch and Thomas stayed quiet. 

Justice Roberts and Kavanaugh’s questions indicated that—at most—they were pondering the second option, upholding Whole Woman’s Health while also holding that courts can conduct state-by-state factual inquiries to determine whether an admitting privileges law created an undue burden on abortion access. For example, here’s a Justice Roberts question:

[I]f the issue, the statutes are on the books in other states, and if the issues are raised there, is the same inquiry required in each case? You have to have the district court examine the availability of specific clinics and the admitting privileges of doctors so that the litigation could be -- the results could be different in different states?

And here’s Justice Kavanaugh:

If a -- if a state passed an admitting privileges law therefore, and suppose a state had ten clinics and two doctors for each clinic, but all 20 doctors could easily get the admitting privileges, so that there would be no effect on the clinics, no effect on the doctors who perform abortions, and, therefore, no effect on the women who obtain abortions, would a law be constitutional in that state?

These are not questions that call into question the validity of Whole Women’s Health, merely its scope. Again, here’s Justice Kavanaugh with a second question along those lines:

Can I follow up on the Chief Justice's earlier question and mine as well? Are you saying that admitting privileges laws are always unconstitutional, such that we don't have to look at the facts in -- state by state? Or are you saying that actually you do look at the facts state by state, and in some states, admitting privileges laws could be constitutional, if they impose no burdens?

In practical terms, it appeared that Justices Kavanaugh and Roberts were open to upholding an admitting privileges law only when it placed a de minimis burden on abortion rights. There was no serious discussion of distinguishing Whole Women’s Health if it had a substantial impact on abortion access. 

In the decades since Roe, pro-life voters and activists have exerted a staggering amount of political energy in the effort to elect presidents who nominate justices who are willing to reverse Roe. Abortion rights activists have responded with their own intense efforts, and the public debate is white-hot. 

The judiciary has in fact been remade—at least to a degree—but America’s judicial transformation has perhaps affected abortion rights less than any other contentious area of American constitutional law. Put another way, the most activist energy has yielded the least constitutional impact, and if today’s oral argument is any indication, then that dreary stability looks set to continue for the foreseeable future. Pro-life activists are not likely obtaining the outcome they seek.