On Wednesday, the Supreme Court will consider a full-blown attack on abortion rights that could throw the court’s own legitimacy into question. The state of Louisiana, which will defend its law before the court tomorrow, hopes the conservative majority’s enthusiasm for abortion restrictions will compel it to undermine bedrock principles of American jurisprudence.
As reproductive rights attorneys, each of us has argued high-stakes abortion cases, including before the Supreme Court and the European Court of Human Rights. We care deeply about reproductive health and have experienced losses that permitted some onerous restrictions on abortion rights as well as legal victories. Yet a basic underlying premise throughout all these cases is that regardless of a judge’s personal animus toward abortion, the courts play by the judicial rules.
That concept is now at risk in June Medical Services v. Gee, a case with a disturbing procedural background.
At issue is a Louisiana statute requiring all physicians who perform abortions to have admitting privileges at local hospitals. Abortion is a safe outpatient medical procedure that very rarely results in hospitalization, especially when the procedure is done using oral medication. The admitting privileges requirement will not make anyone safer, but it does demonstrably shutter abortion clinics. As a result, less than four years ago, the Supreme Court struck down a nearly identical Texas law in Whole Woman’s Health v. Hellerstedt* after finding that the law provided no benefit to offset the “undue burden” it imposed upon women in Texas.
What’s changed since Whole Woman’s Health* was decided in June 2016? Abortion opponents are newly emboldened by Trump’s appointment of two vehemently anti-abortion justices to the highest court. If the Supreme Court now rules in favor of Louisiana, the court will upend its own legal precedent in Whole Woman’s Health* and further erode public confidence in our judiciary, all in pursuit of restricting abortion access.
The first major principle at risk dictates that judges are bound by earlier case law when deciding subsequent cases with similar issues or facts. Abortion opponents did not like the Supreme Court’s pre-Gorsuch/pre-Kavanaugh ruling in Whole Woman’s Health*, but that doesn’t mean that they get to try again with an identical law a mere three years later.
The next endangered legal principle involves the trial court’s role as the place where facts are first determined before the law is then applied to those facts. The Louisiana trial court based its findings on days of testimony by expert witnesses, scientific and peer-reviewed evidence, and opportunities for cross-examination. The trial court’s findings were not only plausible but were well supported by science. But then the 5th Circuit Court of Appeals overstepped its role. Rather than reviewing whether the trial court correctly applied the law to the facts at hand, the 5th Circuit instead substituted its own view of the facts and then upheld the law as constitutional. Science suffered a blow, and the case headed to the Supreme Court.
Last but not least, the third legal principle in the crosshairs involves legal standing—simply put, who can bring a case to court. Extensive case law allows individual doctors to challenge abortion restrictions whether or not they are personally affected by the law. This standing provision recognizes the special circumstances of pregnancy (a pregnant woman is unlikely to bring a timely lawsuit) and the special status of the doctor-patient relationship that permits a doctor to represent the patient’s interest throughout litigation. Once the Supreme Court agreed to hear the case, the state of Louisiana jumped at the chance to challenge this well-established rule of standing, even though the state earlier had waived this argument.
By now, it’s no surprise to see President Donald Trump manipulating the legal system by brazenly meddling in Department of Justice affairs and threatening judicial independence.
Yet as lawyers, the two of us hold out hope that the Supreme Court will stay above the fray, avoid divisive partisan politics, and provide the balance of power that is so vital to the American system of government.
As the red flag issue of abortion is waved before the bullish conservatives, it remains to be seen how the court will react. Justices Neil Gorsuch and Brett Kavanaugh, for all their shortcomings on the substantive issues at stake here, may have regard for judicial precedent after all. Likewise, Chief Justice John Roberts has consistently demonstrated an awareness of how the court will be undermined if it sacrifices well-established judicial principles such as legal precedent, fact-finding, and standing.
Make no mistake—with so many more restrictive abortion laws on the horizon, the outlook for reproductive rights is quite grim. The court has never before had a majority of justices with such extreme anti-abortion views. But this case asks the justices to make far too many procedural contortions now in the hasty pursuit of Trump’s anti-abortion promises.
Correction, March 3, 2020: This piece originally misidentified the plaintiff in Whole Woman’s Health v. Hellerstedt as Whole Women’s Health.
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