A Chance to Challenge Roe?

This term, the Supreme Court will hear June Medical Services v. Gee, which concerns a Louisiana law that requires abortion doctors to have admitting privileges at a nearby hospital. This is the first major abortion case the Court will hear since President Trump appointed Justices Neil Gorsuch and Brett Kavanaugh, and some abortion advocates are concerned that a new Court majority will use this case as a vehicle to overrule Roe v. Wade and Planned Parenthood v. Casey.

But nobody should be expecting a sudden shift in American abortion law. The circumstances surrounding June Medical Services resemble those surrounding the Court’s 1989 decision in Webster v. Reproductive Health Services. Thirty years ago, pro-lifers pressed the Supreme Court to overturn Roe in Webster. A Republican president who ran and won on a pro-life platform had recently appointed two new justices. The sitting chief justice was committed to judicial restraint. His opposition to Roe v. Wade was not in doubt. Indeed, he was one of the original dissenters from the Court’s decision in that case.

If you know how the Webster story ends, then you can appreciate why pro-lifers are not hoping for too much from the Supreme Court in June Medical Services. Pro-lifers’ primary hope for June Medical Services should be that we do not end up with another Webster. That decision was a tactical win but strategic defeat. The Court upheld various provisions of Missouri law regulating abortion. But in order to achieve the five-justice majority necessary for upholding a key provision, Justice Sandra Day O’Connor deployed her then-idiosyncratic “undue burden” test. Three years later, a three-justice plurality consisting of O’Connor, Anthony Kennedy, and David Souter adopted this test into governing law in Planned Parenthood v. Casey.

The Casey plurality trimmed back parts of Roe’s doctrinal framework while purporting to preserve its central holding. According to the Casey plurality, “[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” That is the test the Court has claimed to adhere to ever since.

A few years ago in Whole Women’s Health v. Hellerstedt, the Supreme Court applied Casey to hold unconstitutional two provisions of Texas law, including one that required abortion providers to have admitting privileges at a hospital within 30 miles of each facility at which he or she performs abortions. The Court was down one vote from its normal nine because the vacancy resulting from Justice Scalia’s death had not yet been filled. By 5-3 vote, the Court in Whole Women’s Health determined that the admitting privileges requirement imposed an undue burden and was therefore unconstitutional. Writing for the majority, Justice Breyer determined that Texas had failed to show any health benefit from its admitting privileges requirement. The law’s challengers, on the other hand, had demonstrated that this requirement created a “substantial obstacle” to abortion access in Texas because abortion clinics closed as a result.

June Medical Services is a constitutional challenge to a Louisiana admitting-privileges law similar to that from Whole Women’s Health. The case comes to the Supreme Court from the United States Court of Appeals for the Fifth Circuit. A split three-judge panel upheld Louisiana’s admitting-privileges law after distinguishing the circumstances of the Louisiana case from those in the Texas case. The challengers asked the full Fifth Circuit to review this panel decision. By 9-6 vote, that request failed. Louisiana’s admitting-privileges law did not go into effect after that loss, though, as the law’s challengers obtained a stay from the Supreme Court.

The Supreme Court’s vote on the stay was five to four. Chief Justice Roberts, who dissented in Whole Women’s Health, joined with the four justices who remained from that majority after Justice Kennedy’s retirement to grant the stay. Justice Kavanaugh, joined by Justices Thomas, Alito, and Gorsuch, dissented.

Although the Louisiana admitting-privileges law was similar to Texas’s law, the Fifth Circuit panel majority found that the likely effect on abortion access in Louisiana would have been very different. Whereas the Texas law resulted in many clinic closures, the Fifth Circuit panel majority predicted that this would not be the case in Louisiana. Based on a detailed review of the record compiled in the Louisiana case, the panel majority determined that “the only permissible finding, under this record, is that no clinics will likely be forced to close on account of the Act.” Some of the abortion doctors, the panel majority found, had not put in a good-faith effort to get admitting privileges. The decision came down to dueling predictions about what would happen if the law were to go into effect.

With the stay in place, the Supreme Court’s recent grant of review in June Medical Services will return the justices to the record to review predictions about the likely effect of Louisiana’s admitting privileges law. While it is possible that this case could be a vehicle for transforming the substantive law governing abortion, that is unlikely.

Even so, the Court’s decision to decide June Medical Services might turn out to mark the beginning of the end of the Roe/Casey regime. In addition to granting the challengers’ petition for certiorari, the Court also granted Louisiana’s conditional cross-petition. The question presented in that conditional cross-petition is whether abortion doctors and clinics have third-party standing to assert the rights of their potential patients. If the challengers in June Medical Services had asserted only their own rights as physicians to be free of a regulation governing their medical practice, they would almost certainly have lost under the deferential “rational basis” test that the lower courts would have had to apply. But by asserting the rights of their prospective patients/clients, abortion clinics and doctors have benefitted from the harder-to-satisfy “undue burden” standard.

Louisiana’s cross-petition contends that the law of third-party standing in abortion cases is an outlier, and that abortion clinics and doctors should not be permitted to wield the constitutional rights of their patients in order to invalidate patient-protective procedures such as Louisiana’s admitting-privileges law. Given that the Supreme Court granted Roe v. Wade at first only to review a technical question about federal-court abstention, it would be fitting if the Court were to begin dismantling the Roe/Casey regime through renewed rigor with respect to jurisdictional, procedural, evidentiary, and other “adjective law.”

It only takes four votes to obtain Supreme Court review. It is likely that these votes were the Ginsburg/Breyer/Sotomayor/Kagan foursome, while the votes to grant the cross-petition likely came from the stay dissenters. All eyes are on Chief Justice Roberts.

Instead of expecting anything dramatic, look for Roberts to engage in a careful comparison and contrast of the record on review, which differs significantly for Louisiana’s law as compared with Texas’s in Whole Women’s Health. And expect facile comparisons between the two cases from people who have not done the reading. It is difficult to predict precisely what path a Supreme Court majority will take through the issues. But history and experience suggest some virtue in chastened aspirations for immediate Roe/Casey regime change. 

 Kevin C. Walsh is professor of law at the University of Richmond.

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