Jurisprudence

Anti-Abortion Advocates Lied So Poorly That John Roberts May Side With the Liberals

June Medical proves that Louisiana’s law isn’t about protecting women’s health.

John Roberts, in profile.
John Roberts arrives at the U.S. Capitol on Jan. 31. Mark Wilson/Getty Images

On Wednesday morning, the Supreme Court heard oral arguments in June Medical Services v. Russo, a case that is built on lies about Louisiana’s reasons for trying to regulate abortion providers. The truth is that Louisiana wants to regulate abortion clinics out of existence, but sometimes lies are all you need to win at the Supreme Court. Other times, a litigant’s brazen mendacity can so offend a majority of the justices that they refuse to play along with the ruse.

The question in June Medical is whether Chief Justice John Roberts is sufficiently bothered by Louisiana’s deceptions to vote against abortion restrictions that, as a policy matter, he probably favors. And against all odds, the answer may be that Roberts will reject the state’s falsehoods and uphold pro-choice precedent. The litigants might have overdone it.

The Louisiana law at issue in June Medical requires abortion providers to obtain “admitting privileges” at a hospital within 30 miles of their clinic, which gives them authority to admit patients and provide surgical services. In 2016’s Whole Woman’s Health v. Hellerstedt, the Supreme Court found that this requirement serves no medical benefit, since abortion patients who experience complications can go to any hospital. Moreover, the court held that the rule would force many clinics to shutter, imposing substantial burdens on women. Because these burdens outweighed the (non-existent) benefits, the court found them unconstitutional.

Because June Medical involves an identical admitting privileges requirement, you might wonder why it is before the court so soon after Whole Woman’s Health. The short answer is that the court has changed. In 2016, Justice Anthony Kennedy cast the fifth vote to knock down Texas’ law. He has since been replaced by Justice Brett Kavanaugh, who has a stark anti-abortion record. Anticipating a fifth vote to overturn Whole Woman’s Health, the 5th U.S Circuit Court of Appeals essentially defied precedent in June Medical, finding that the admitting privileges requirement actually does provide some benefit to women and that it would not impose an undue burden because abortion providers could obtain the privileges. The 5th Circuit’s decision so obviously ran afoul of precedent that Roberts joined the liberals to put it on hold in a 5–4 order, blocking the Louisiana law.

Before Wednesday, conventional wisdom held that Roberts, who dissented in Whole Woman’s Health, simply wanted to overturn the decision himself rather than let a lower court do it for him. And perhaps that’s still true. But Louisiana may have bungled this case so badly that Roberts feels he has no choice but to uphold precedent, at least for now.

If the chief justice does swing left, the liberal justices deserve the lion’s share of the credit. They overwhelmed Louisiana Solicitor General Elizabeth Murrill with factual questions that she simply could not answer honestly without undermining her own argument. “What sense does the 30-mile limit make,” Justice Ruth Bader Ginsburg asked, when “the overwhelming number” of women either undergo medical abortion at home or return home after the procedure? There are just three clinics in Louisiana, and many women have to drive for hours to reach them. “If the woman has a problem,” Ginsburg said, “it will be her local hospital that she will need to go to for the care, not something 30 miles from the clinic.” Murrill claimed that the 30-mile limit ensures “continuity of care.” But, as Justice Sonia Sotomayor reiterated, that is simply not true for the many patients who go home after going to the clinic.

Murrill switched gears, insisting that the admitting privileges rule is also justified by its “credentialing” function. At trial, however, multiple providers testified that nearby hospitals refused to give them admitting privileges for reasons that had nothing to do with their qualifications. Whole Woman’s Health, Justice Elena Kagan reminded Murrill, “said a state can’t say it’s doing this for credentialing purposes if the hospital’s reasons for denying admitting privileges have nothing to do with the doctor’s quality.” Here, “there’s a great deal of evidence in the record that indicates that admissions privileges rest on many things.” It could rest on “the number of patients a doctor has,” or even a hospital’s opposition to abortion. “Given that that’s all true,” Kagan told Murrill, “Whole Woman’s Health precludes you from making this credentialing argument, doesn’t it?”

In response, Murrill told Kagan that, unlike Texas’ providers, Louisiana’s providers could get admitting privileges if they just tried harder. Ginsburg promptly swatted down this falsehood. “Is it not the fact,” she told Murrill, “that most hospitals in Louisiana, in order to get admitting privileges, you have to admit a certain number of patients?” Abortion providers “will never qualify because their patients don’t go to the hospital.” Murrill claimed that no one knows the actual complication rate of abortions, leading Kagan to correct her with a fact from the record: One clinic has served around 70,000 women over 23 years and “has transferred only four patients ever to a hospital.”

“They really don’t know that’s an accurate rate because they don’t track their complications,” Murrill protested.

“They know whether they have transferred women to a hospital,” Kagan responded sharply, “and it’s four. I mean, I don’t know of a medical procedure where it’s lower than that of any kind.”

Sotomayor informed Murrill that one doctor only prescribes medical abortions and does not perform surgical abortions. “Your state’s own expert,” Sotomayor said, “testified that it was not likely that he was going to get privileges anywhere” because “you had to see a certain number of patients in the hospital per year to maintain your privileges.” (This expert, Dr. Robert Marier, also helped draft the law in question.)

“I think the record shows that they can get privileges,” Murrill objected. She accused the doctors of having “sabotaged their own applications,” even though the state’s expert acknowledged that those applications may be futile.

The truth is that the Supreme Court already ruled, in Whole Woman’s Health, that admitting privileges provide no “health-related benefit” to women. And try as she might, Murrill could not explain why Louisiana’s identical admitting privileges were somehow beneficial. Crucially, Roberts seemed to grasp this point. “Do you agree,” he asked Murrill, “that the benefits inquiry under the law is going to be the same in every case, regardless of which state we’re talking about? I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that’s going to be the same in each state, isn’t it?”

Roberts put this point even more bluntly to Deputy Solicitor General Jeff Wall, who defended the Louisiana law for the Trump administration. “I understand the point that the impact of the law varies from state to state,” he told Wall. “But why do you look at each state differently if the benefits of the law—they’re not going to change from state to state.”

These questions may be the ballgame. Roberts appears to realize that an admitting privileges requirement creates no benefit, in Texas or Louisiana or anywhere else. That means, unless he wants to overturn Whole Woman’s Health, he has to strike it down. But Roberts expressed no appetite to reverse a four-year-old precedent, just because Kavanaugh replaced Kennedy. Nor did he indicate that he believed Murrill’s falsifications of the record.

If there is a swing vote in this case, it’s Roberts. Kavanaugh asked few questions but suggested that an admitting privileges rule would be constitutional if providers can “easily” get them. Justice Samuel Alito argued that clinics should not be able to bring lawsuits on behalf of patients, though no other justice appeared interested in that position. Justices Clarence Thomas and Neil Gorsuch said nothing. Among the conservatives, only Roberts understood that it makes no sense to treat Louisiana’s law any differently from Texas’.

Roberts might’ve been more sympathetic if Louisiana had been more candid about its real goal of curbing abortions. But his attitude on Wednesday suggests that he does not like being lied to about the genuine purpose of anti-abortion legislation. If future litigants ask Roberts to overturn precedent to limit or abolish the constitutional right to abortion, he may well take up the offer. In June Medical, though, the chief justice might be unwilling to reward Louisiana’s slapdash subterfuge.