A Timeout, Not A Slam-dunk: June Medical Services LLC v. Russo
Published July 1, 2020
U.S. Supreme Court cases involving questions of access to abortion are always extremely contentious and even volatile. Court decisions are highly awaited, as pro-life and pro-choice advocates watch to see the scope and the direction of the outcome. The ruling in the case of June Medical Services offered both a sigh of relief for pro-choice supporters and a glimmer of hope for pro-life activists.
On June 28, the Supreme Court's ruling in June Medical Services LLC v. Russo upheld an earlier precedent on access to abortion in Whole Woman’s Health v. Hellerstedt. While the cases dealt with almost identical regulations on hospital admitting privileges and the cases were ruled upon almost four years ago to date, questions on access to abortion remain. The June Medical decision should not be considered an unequivocal victory for pro-choice advocates. The decision is narrow and represents more a deference to precedent than a new frontier for abortion rights.
To better understand the ruling, let’s look at the case itself, the decision, the composition of the Court, and the possible impact of this ruling on Trump’s re-election.
The Case: This case grew out of the Louisiana Unsafe Abortion Act of June 2014, mandating “that every physician who performs or induces an abortion shall ‘have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion was performed.’” On its face, this ruling might seem somewhat benign, but it is anything but. The Court’s 5-4 decision might seem somewhat convincing, but it is anything but.
At the heart of June Medical is the question of regulations known as TRAP laws, shorthand for Targeted Regulations Against Providers. In general, TRAP laws focus on the facilities and the provider and less so on the patient. Examples of such laws include a specified width of clinic corridors, physical dimensions of procedure rooms, and transfer agreement with local hospitals. Such strict facility regulations can dramatically reduce the numbers of abortion clinics. Currently 24 states have some form of TRAP laws. North Carolina, for example, doesn’t have a law requiring a clinic have admitting privileges, but it does have four laws classified as TRAP laws, including requiring clinics to have structural standards comparable to those of ambulatory surgical centers. If you don’t understand TRAP laws, you are not alone. The general public is generally unfamiliar with such regulations.
Here’s where the issue of framing comes into play. For pro-life supporters, these regulations represent essential protections for women’s health. Conversely, pro-choice supporters refute TRAP laws as a justification for protecting women, viewing them instead as furtive attempts to prohibit access to abortion. According to the Guttmacher Institute, a think tank focusing on women’s reproductive health and access to abortion, the “active admitting privileges” requirement resulted in the closure of more than half of the clinics in Texas between November 2013 and June 2016 while this regulation was still on the books.
In addition, while the Court’s 1973 decision in Roe v. Wade recognized a woman’s right to access an abortion, many subsequent rulings that have reshaped the scope and availability of procuring abortions. The direct role of individual states in regulating abortion was stated, albeit ambiguously, in the 1992 case of Planned Parenthood of Southeastern PA v. Casey. Here the Court ruled that individual states could draw their own restrictions if these regulations did not present an “an undue burden” on women seeking an abortion. Since that time, numerous cases have tried to figure out what constitutes an “undue burden.”
But wait, there’s more. Consolidated with the June Medical Services LLC v. Russo was the case Russo v. June Medical Services LLC. Yes, it’s s a reordering of litigants, but the issue is not one of admitting privileges. The question here wasn’t highly visible but nonetheless important. Here the Court dealt with who has the authority to sue in abortion case – essentially, the provider or the patient. The precise language was “whether the abortion provider can be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients a ‘close relationship with their patients’ and ‘a hindrance’ to their patient’s ability to sue.” The standing question that attracted a good deal of attention from the dissenters.
The Decision: The first sentence of the opinion leaves no doubt as to the basis of the majority opinion. Breyer’ writes “Louisiana’s Act 620, which is almost word-for-word identical to the Texas ‘admitting privileges’ law at issue in Whole Woman’s Health v. Hellerstedt.” That single sentence captured the rest of the decision.
While by no means a perfect clue as to how the Court will vote, oral arguments did signal the direction of the decision. During the March 4 oral arguments, Justice Roberts, repeatedly asked about the similarities between this case on admitting privileges versus those in Whole Woman’s Health v. Hellerstedt. On the liberal side, Justice Ginsburg focused on the validity of these regulations given the small number of women requiring hospitalization She noted that Hope Clinic reported only 4 out of 70,000 women, approximately .01%, required hospitalization. There was little new ground to cover in the oral arguments. Overall, one reporter went so far as to characterize the oral arguments as “hopeful” to pro-choice supporters
The 5-4 decision was actually a 4-1-4 decision with Justice Roberts concurring in the judgement but not his views on abortion itself. The bottom line is that the ruling affirmed the precedent of Whole Woman’s Health, but it wasn’t a signal future protections of abortion rights. The as he did now, Roberts characterized the case as “wrongly decided” in terms of permitting abortion itself. Justices Breyer, Sotomayor, Kagan, and Ginsburg ruled these admitting privileges to be unconstitutional. Justice joined the plurality on the basis of precedent not on abortion rights. Justices Alito, Thomas, Gorsuch and Kavanaugh ruled these provisions constitutional in that they didn’t impose an “undue burden” on women seeking an abortion.
Writing for the plurality, Justice Breyer concluded that the “findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result” and therefore the “Louisiana statute is unconstitutional.” He added that opposition to abortion itself had entered into the decisions to require active admitting privileges.
In a concurring opinion with the judgement, Chief Justice Roberts left no doubt as to the basis for his reasoning: “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents.”
In his dissenting opinion, Justice Alito agreed on the similarity of the two cases but for very different reasons! He boldly asserted that “in both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.” Alito roundly criticizes Roberts for agreeing with the benefits of admitting privileges while at the same time siding with striking down the law. Reading between the lines, this strikes Alito as quite hypocritical. As to the question of third party standing, Alito contends there is “a blatant conflict of interest between provider and its patients” since “an abortion provider has a financial interest in avoiding burdensome regulations.” In summary, Alito disagrees with the decision based on what he sees as the misuse of stare decisis, the dubious validity of third party standing in this case, the dismissal of considerations of women’s safety from admitting privileges and the absence of an “undue burden.”
In summary, the Court’s ruling in June Medical Services doesn’t secure access to abortion. It just puts it on pause. Pro-life activists will be energized by the narrow ruling. An inventory of restrictions already exists. These are just waiting to be tested in the Court.
The Court: While the issue of admitting privileges are nearly identical in June Medical Services and Whole Woman’s Health, the composition of the Court is not. The Court has shifted decidedly to the right with the appointment of Neil Gorsuch and Brett Kavanaugh. During his 2016 campaign, Trump was adamant that he would make the Court appointments that would overturn Roe v. Wade. Simply put, Trump assumed the appointment of conservative judges would guarantee an end to abortion. He also assumed that conservative appointments would deliver political conservative decisions. Recent rulings prove otherwise.
The June Medical Services decision is the latest in a string of Supreme Court decisions dealing with highly ideologically charged issues. On June 15 the Court released its decision on Bostock v. Clayton County, Georgia, ruling that the Civil Rights Act of 1964 provided protection against workplace discrimination of LGBTQ employees. Two days later on June 18, the court ruled in the case of Department of Homeland Security v. Regents of the University of California that the Deferred Action for Childhood Arrivals (DACA), the administration had not adequately followed procedures for reasoned evidence but invited a resubmission. While viewed as a victory by immigration advocates, this decision, like June Medical Services, put DACA regulations on pause. Given the conservative majority in the Court, both decisions were presented victories for liberals.
Reacting to those decisions, Trump tweeted “Do you get the impression that the Supreme Court doesn’t like me?” He followed up by tweeting that the Court’s decisions were “horrible and politically charged” and “shotgun blasts in the face of people who are proud to call themselves Republicans and Conservatives.” Trump ended by warning “We need more Justices or we will lose our 2nd Amendment and everything else. Vote Trump 2020!” Response to this ruling on admitting privileges was mild, to say the least. After the June Medical Services ruling, the White House issued a statement describing it as an “unfortunate ruling” in which the “Supreme Court devalued both the health of mothers and the lives of unborn children.” Note that Trump does not blame liberal members of the Court but the Supreme Court itself!
Without getting into detail, in 2018 Trump had called the Ninth Circuit Court “a disgrace” and one of its judges “an Obama judge.” Justice Roberts responded by telling the Associated Press that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges” but “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” a reproach considered “unprecedented.” Americans United for Life (AUL), a national pro-life organization, stated that Roberts had acquiesced when Senator Chuck Schumer criticized the politicization of the Court. Roberts clearly wanted to remind the President and others that the legitimacy of the Supreme Court is based on its independence. The AUL wrote of Roberts’ decision as suggesting “his bark is louder than his bite.”
Impact on Trump's Re-election: During his 2016 election campaign Trump made a promise to evangelicals to protect religious freedoms and to end any access to abortion. In 2017, Trump went out of way to remind evangelicals that he had already made more significant gains than any other president in promoting religion. Doubtless, he will highlight these moves as more than any previous president has done.
Additionally, he will remind supporters that he broke with past presidents when he chose to appear in person for the pro-life’s annual March for Life parade. In past years, Republican presidents have only sent video messages. As expected, Trump roundly criticized the Democrats and the “far left” for their disregard for the “sanctity of life.” Citing the appointment of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, Trump touted himself as the strongest defender of life in the country.
What does this decision mean for Trump ‘s re-election? While the precise fallout remains to be seen, any decision by the Court that is not pro-life impacts Trump in 2020. In part, that has to do with Biden’s stance on abortion and reproductive rights. Despite his recent endorsement by Planned Parenthood, Biden’s support on access abortion seem more nuanced than unequivocal and his public stance might more a reflection of the need for the vote of women than a principled stand.
Conclusion: Just because this case did not formally “overturn” the landmark abortion case of Roe v. Wade doesn’t make it any less important. Despite the visibility and heated nature of access to abortion, public opinion on access to abortion remains remarkably stable. Pew polls in 2019 showed 61% of the public agreed abortion should be legal in all or most cases and 38% agreed it should be illegal in all or most cases. That fact alone will not curb abortion litigation. Indeed, access to abortion can and continues to be written through state legislation. At any given time, there are abortion cases in queue to work their way to the Supreme Court. Neither side is taking a pause. Pro-choice activists have vowed to keep fighting for more access to abortion. Without question, pro-life advocates will push cases to further test a decidedly conservative Court. The full impact of June Medical Services is yet to be seen.