America May Be Nearing the End of the Roe Era

By Garrett Epps, The Atlantic

13 February 20

June Medical Services v. Russo presents the Supreme Court with the power to green-light extremely restrictive abortion laws.

ext month, the Supreme Court will hear a high-stakes abortion case, June Medical Services v. Russo. I would summarize the question presented as Now that Justice Kennedy is gone at last, do his old precedents still apply?

June Medical Services presents the identical issue as a 2016 case, Whole Woman’s Health v. Hellerstedt. In Hellerstedt, the Court struck down a Texas statute that—supposedly in the name of health—would have closed half of the clinics in Texas that offer abortion services. The Fifth Circuit, dominated by conservative judges, had held that states that say abortion-related laws provide health benefits need not show that they actually do provide them. Thus, the law’s requirement that abortion providers have admitting privileges at nearby hospitals could go into effect, even though this was basically irrelevant to patient safety. Similarly, the state could require abortion facilities to qualify as ambulatory surgical centers, even though the multimillion-dollar cost of attaining that status results in no additional safety for a woman getting an abortion there.

In a 5–3 decision written by Justice Stephen Breyer, the court majority said that Roe and its successor, Planned Parenthood v. Casey, “require that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The facts as found in the district court showed that “there was no significant health-related problem that the new law helped to cure,” so the law was invalid.

Breyer was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor—and Anthony Kennedy. (Because Justice Antonin Scalia had died that winter, only eight justices were serving on the Court at the time.) Hellerstedt was the first Supreme Court decision in nearly a generation that struck me as real case law, providing a rule that lower courts could apply, rather than incoherent ad hoc rationalization. The rule it announced, if properly applied, would protect the right to choose abortion from most of the “health” statutes that red-state legislatures have passed since 2010.

But the game changed: Republicans had already blocked the nomination of Merrick Garland. Then Donald Trump took office and gave that seat to Neil Gorsuch. Kennedy resigned, and Brett Kavanaugh, who seems skeptical of abortion rights, was confirmed to the court in a right-wing coup de main. Louisiana, meanwhile, had enacted a statute that was in all respects identical to the Texas law invalidated in Hellerstedt. A district court heard detailed evidence of its effects on the availability of abortion and applied Hellerstedt to strike it down.

Not so fast, said the Fifth Circuit. This case is totally, completely, unquestionably, definitely, and in every way different from the one in Texas. Why? Well, because in this case the doctors supposedly hadn’t really tried to get admitting privileges (the district court heard evidence that they had) and so the law was a-okay. (Besides, look at a map—Louisiana is a whole different shape than Texas.) The barely concealed subtext was: Kennedy’s gone, we own the courts now, and all that silly “precedent” is void.

The point of this outright defiance, of course, was to require the Supreme Court to take up the case and thus allow the justices who had voted to uphold the earlier Texas law (Clarence Thomas, Samuel Alito, and Chief Justice John Roberts) to join the new appointees, Gorsuch and Kavanaugh, to reverse or neuter Hellerstedt, and maybe even Roe and Casey.

But some of these justices (especially Roberts) may not be cynical enough to reverse a four-year-old precedent solely because of two new appointments.

Louisiana has thus chosen to present the Court with a new argument—a sort of off-ramp that would allow the majority to dodge the Hellerstedt precedent and give the green light to abortion-restricting laws across red America. Louisiana is mounting an attack on doctors’ “standing to sue.” All the Court has to do is say that doctors who provide abortions to pregnant women can no longer go to court to challenge regulations that would put them out of business.

This move involves what the late Ella Fitzgerald might have called “the dipsy doodle” —when words suddenly mean their opposite. Louisiana (joined now by the Trump administration) argues that the physician-plaintiffs in June Medical Services would not really be injured by a law that would put them out of business. The injury, if any, would be to pregnant women, Louisiana and the Solicitor General argue. Thus the doctors are trying to exert “third-party standing” (disfavored in federal litigation) by asserting their patients’ rights rather than their own. And the facts, Louisiana claims, are even worse than that: Abortion providers are not kindly doctors at all—they are mercenary exploiters of pregnant women, and they ought to be viewed as women’s enemies.

“Abortion providers and their patients have an obvious conflict in the inevitable tradeoff between cost and safety,” the state argued in its brief: “Women have an interest in ensuring their own health and safety when they choose to obtain an abortion … But plaintiffs’ interest is to reduce compliance costs and government oversight while providing as many abortions as possible.”

Trump’s solicitor general, Noel Francisco, charged in an amicus brief that “the law creates compliance costs without any personal benefits for abortion providers,” giving them “every incentive to see the law invalidated.” Women, meanwhile, “may see [the law’s] benefits as quite significant.” This means that doctors shouldn’t be allowed to speak for patients. If the Court agrees, the case goes away, and suing to block similar laws becomes much harder—without creating the negative publicity of overturning Hellerstedt. 

There are a few problems with this argument. First and most important, the established law of “standing” requires only that a plaintiff him- or herself have a “particularized injury” that is “traceable” to the defendants’ actions and “redressable” by a federal court order. As Stephen Vladeck of the University of Texas and Leah Litman of the University of Michigan pointed out on SCOTUSblog last week, the plaintiffs in June Medical Services have injury to spare: Under the Louisiana law, if they continue to provide abortions without admitting privileges, they could be fined up to $4,000 per violation and imprisoned for up to two years, and lose their medical licenses.

No sane person would question that criminalizing previously legal professional conduct creates an “individualized injury” to the professionals. That’s not “third-party standing.” It’s just good old regular standing, and it ought not to be in question.

The second problem is that it asks the Court to decide the case before hearing it. The question is whether the law advances women’s health; the state is asking the Court to assume that it does. That is, to put it politely, intellectually dubious.

The third problem is that it is asking the Court to create a new morality element of standing for abortion providers and only abortion providers. Here, the doctors are engaged in a practice of medicine that is, under the past half century of Supreme Court precedent, wholly legal. But, the state and the Trump administration now argue, abortion providers should not have standing anymore, because, well, we all know that they are really bad, immoral people who kill babies and fool women to allow them to kill more babies, and they do it for filthy lucre, and they no more belong before the Court than pedophiles or sexual predators. Louisiana and the federal government want not just to win the case but to mark the other side with a permanent scarlet A.

The Court respectfully hears cases from tobacco death merchants, corrupt public officials, and corporate human-rights offenders—as it should. There is no special “we don’t like your kind” doctrine of standing, and there shouldn’t be.

For all these reasons, third-party standing offers only illusory refuge from the grim truth that the Fifth Circuit has raised a judicial middle finger to the Court. If the five conservative justices let the lower court manipulate them this time, other conservative lower-court majorities will be back again and again, the appellate tail wagging the meek Supreme Court dog.