The first big abortion case to face the Supreme Court with President Donald Trump’s appointed justices will be heard March 4, in which they will consider a Louisiana law requiring doctors who perform abortions to have hospital admitting privileges near their practice. How the new justices will approach such cases is very much undetermined at this point, leading court-watchers already attuned to abortion issues to consider this especially interesting.
In June Medical Services LLC v. Russo, two issues are at play: one procedural and the other more substantive. First, the substantive.
Louisiana has a state law requiring physicians who perform abortions to have admitting privileges at a local hospital. The problem is that the Supreme Court struck down an essentially identical Texas law in 2016. The court — missing a justice due to Antonin Scalia’s death — ruled 5-3 that the Texas law placed a substantial obstacle in the path of women seeking an abortion, constituting an undue burden on abortion access and violating the Constitution. Why isn’t the same law in Louisiana also unconstitutional?
The Federal District Court in Louisiana thought the law was unconstitutional and stopped it from being enforced. That court was overruled by the Fifth Circuit Court of Appeals, which disagreed over objections. The Supreme Court then stepped in and reinstated the injunction. It is difficult to understand how the Texas and Louisiana cases can be distinguished, and so it seems the desire to uphold abortion restrictions was more at play than fealty to the precedent set by a higher court. Did the Supreme Court take the Louisiana case to bat down the Fifth Circuit’s error, or is new abortion jurisprudence at hand?
Scalia, Gorsuch, Kennedy, Kavanaugh
In the Texas case, Whole Woman’s Health v. Hellerstedt, Justice Anthony Kennedy voted with the majority, and Scalia’s seat was empty. Now Justice Neil Gorsuch has replaced Scalia, and Justice Brett Kavanaugh has replaced Kennedy. Speculators believe that Kavanaugh, a Roman Catholic, will have a more restrictive view of what abortion rights the Constitution grants. Meanwhile, Gorsuch could hardly be more anti-abortion than Scalia, who said, “The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not.” Another data point is that Chief Justice John Roberts voted with the liberals to grant the current injunction over the Louisiana law.
There is another possibility here, however, and one that would allow the court to avoid ruling on the substance of the case. This suit was brought not by a person who wanted to terminate her pregnancy but by abortion clinics and doctors purportedly acting on behalf of women. As Amy Howe writes at SCOTUSblog:
“Moreover, the state asserts, because the law is intended to protect women from ‘unscrupulous and incompetent abortion providers,’ there is a ‘serious conflict of interest’ between providers and the patients on whose behalf they are suing, who have an interest in their own health and safety.”
Avoiding a contentious ruling might be an attractive path for the Supreme Court, which is dealing with many big cases this term, an election year. That is in addition to losing Roberts during the impeachment trial. Punt, pass, or kick? We will have to wait and see.
Read more from Scott D. Cosenza.