On Monday mornings, when the U.S. Supreme Court releases opinions, one question frequently fielded is: “Will the Court decide X case today?” The answer, in every single case, is that the Court does not say which cases will be ruled on. If that information leaked, the leak itself would be a huge story. The speculation this week centered on the abortion debate. Numerous media outlets suggested the case was to be decided Monday, June 22, but the justices disappointed the prognosticators. They released only one of the 15 pending cases, an 8-1 ruling about a complicated tenet of enforcing financial judgments by the Securities and Exchange Commission. The Court is making everyone wait for June Medical, the case that has people on both sides of the abortion debate on pins and needles.
June Medical Services LLC v. Russo
One group that watches the Court like a hawk is SCOTUSblog; the site is singularly dedicated to the work of the high court, and the discussion level is high. For a case summary, SCOTUSblog’s Amy Howe presents an excellent summation:
“The case is a challenge to a Louisiana law that requires physicians who perform abortions in the state to have ‘active admitting privileges’ – the ability not only to admit patients but also to provide diagnostic and surgical services – at a hospital within 30 miles of the facility where the doctor provides abortions.”
If you thought the Supreme Court had already decided this case, you are right. June Medical is atypical because the Supreme Court ruled on a similar case just a few years ago. In 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled 5-3 that a similar Texas law was unconstitutional. The cases are so similar that Court watchers, including this lawyer, were quite surprised the lower court, here the Fifth Circuit, allowed the law to stand. The composition of the Supreme Court has changed since 2016, so friends and foes of abortion rights are anxious to find out what the new normal will be.
That 5-3 vote in the 2016 case broke down like this: The majority decision was penned by Justice Stephen Breyer and joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. They said the Texas law violated the constitutional rights of women to procure abortion services. Chief Justice John Roberts joined Justice Samuel Alito in dissent, as did Justice Clarence Thomas. Their opinion didn’t address the merits of the constitutional law claim but instead relied on procedural grounds to rule the other way. Justice Antonin Scalia had died less than a month before the case was argued, accounting for eight votes instead of nine.
A Switch in Nine….
Scalia was replaced by Justice Brett Kavanaugh and Kennedy by Justice Neil Gorsuch. Kavanagh is a Roman Catholic, so some see him as the best hope for an abortion-restricting vote. That would leave the swing vote in Gorsuch’s hand, provided everyone else votes the same on the Louisiana law as they did in the Texas case.
With Gorsuch, it’s anyone’s guess. Many conservatives are profoundly disappointed about his ruling in the Bostock case, which said the law protects gay and transgender people from being fired because of that status. I discussed Gorsuch’s reasoning in depth here at LN, but my quick take is that while he gave a ruling that many conservatives hate, I don’t think they can quibble with his reasoning. Instead of expanding rights based on a new reading of the words on the page, Gorsuch said the words on the page should have been understood to require this result at the time they were drafted. Then he said indirectly that if Congress wishes to change the law, it can, allowing job discrimination against trans and gay people. That’s a far cry from the creative judging we’ve seen in the past from the left wing of the Court, which often seems to decide which side should win first and then simply backfills with arguments.
While anything’s possible, it’s a safe bet Ginsburg, Kagan, Sotomayor, and Breyer will not vote to uphold the Louisiana law. For his part, Roberts seems likely to disappoint conservatives, whatever his ruling or opinion. Will he vote against abortion rights if that might mean a real change in the law?
The U.S. Supreme Court typically releases decisions in all pending cases by the end of June.
Read more from Scott D. Cosenza.