On Oct. 4, the U.S. Supreme Court granted review of an abortion case. The case, June Medical Services, LLC v. Gee, involves a law in Louisiana that requires abortionists to have admitting privileges at a local hospital. If they do not have them, they cannot commit abortions.
Oddly, at first glance, this issue appears to have already been decided by the Supreme Court. On June 27, 2016, that is, two and a half years ago, the court decided Whole Woman’s Health v. Hellerstedt. In that decision, the high court struck down a Texas law that, among other things, required abortionists to have admitting privileges in a local hospital. The two cases seem more or less identical. What has changed? Why would the court consider the issue again? Is not the court bound by “precedent”? There are several answers to these questions, all of which bode well for the pro-life cause.
First, the major apparent change in circumstances is that the composition of the court has changed. The majority that decided Hellerstedt — Stephen Breyer, Ruth Ginsburg, Sonia Sotomayor, Elena Kagan and Anthony Kennedy — no longer exists: Kennedy has retired. Further, though there are nine seats on the court, Hellerstedt was decided by a 5-3 vote. It was decided, in other words, during the period between the death of Antonin Scalia (Feb. 13, 2016) and the confirmation of his successor, Neil Gorsuch (April 7, 2017), at a time when there were only eight justices on the court. Finally, both Kennedy and Scalia were replaced by nominees of President Donald Trump: Brett Kavanaugh and Gorsuch.
Trump, of course, pledged to nominate “originalists” to the court. An originalist is a justice who tries to apply the law as written, whether he agrees with the perspective it expresses or not. Both Gorsuch and Kavanaugh, during hearings before the Senate Judiciary Committee, identified themselves with the originalist judicial philosophy. Consequently, both are pledged to apply the Constitution as written to decide abortion cases. Since, as readers well know, there is no right to abortion written in the Constitution, and since originalist justices now comprise a five-vote majority (Kavanaugh and Gorsuch, plus the three justices who dissented in Hellerstedt — Samuel Alito, John Roberts and Clarence Thomas), this could indicate that the justices will use the occasion of the Gee case to overrule the abortion license created by the court in Roe v. Wade and Doe v. Bolton, companion cases, in 1973.
However, that seems unlikely. The abortion license, or “right,” has been embedded by the Supreme Court in many decisions following Roe and Doe (most infamously in Planned Parenthood v. Casey in 1992, in which the court admonished pro-life Americans from continuing to protest those outcomes). Overruling them all in a single case may be thought by some justices to be going too far, too fast. (And the reader must remember that it takes five votes to make a majority.) Chief Justice John Roberts, in particular, seems to be an “incrementalist”; in other words, he seemingly prefers to decide as narrow an issue, by as large a majority of justices, as possible. Thus, he will set the parameters of the outcome. Roberts has often expressed concern for public perception of, and support for, the court’s decisions.
The narrowest possible outcome would be to “distinguish” Gee from Hellerstedt; in other words, to uphold both cases by finding that Gee is significantly different. The court of appeals that decided Gee, in fact, said this was precisely what it was doing. It said the factual circumstances were different in the two cases and that this was determinative. It noted that, while the law in Texas was understood by the court to have effectively closed many abortion businesses and have impacted many women, that was not the case with the Louisiana law, which, even potentially, only impacted a small number. This, the appellate court reasoned, did not violate Supreme Court precedent requiring a law limiting abortion not to place an “undue burden” on a woman seeking an abortion.
Nonetheless, it seems unlikely the court will decide Gee so narrowly. If the court felt Gee was an incorrect application of Hellerstedt, it could simply have summarily reversed the appellate court. Thus, it seems a majority of the court (which voted to grant review of the appellate court decision in Gee) must wish to do more than that. It seems more likely the court wants to “limit,” or even reverse, Hellerstedt.
The reader should note that the “undue burden” test was itself created by the Supreme Court. It is notoriously difficult to apply (the court has said it is equivalent to a “significant obstacle” or that it must affect a “large fraction” of the cases; such vague formulations do not help lower courts to apply the undue-burden test, resulting in abortion cases being decided on an ad hoc basis, with the Supreme Court, as former Justice Sandra Day O’Connor noted, being “the nation’s de facto abortion review board.”
In his dissent in Hellerstedt, Justice Alito, joined by Thomas and Roberts, noted dissatisfaction with tests, such as undue burden, that have been created by the court seemingly and solely in the abortion context to make it easier for abortion proponents to challenge state laws limiting abortion. In other decisions, other justices have expressed similar dissatisfaction with this kind of “abortion distortion.” Hence, it seems possible the court will use its decision in Gee to correct this and to make it clear that the regular rules of interpretation and of procedure apply to abortion cases, as they do to any other issue.
If so, that would be highly significant. Although the media often says abortion is a “fundamental right,” the court has never said so. Fundamental rights (such as freedom from racial discrimination) are subject to a “strict scrutiny” standard. That means laws that embody them (e.g., that discriminate on the basis of race) are unlikely to survive judicial scrutiny. Most laws are subject only to a “rational basis” review. That means if there is a rational basis for the law, it will be upheld. Abortion has been treated by the Supreme Court as having an “intermediate” status and subject to the undue-burden test. If the “undue burden” standard is rejected, and the ordinary “rational basis” standard is henceforth to be applied to laws regulating abortion, those laws are almost certain to be upheld, and they will not require Supreme Court review.
Even more likely than elimination of the undue-burden standard is that the court will eliminate another abortion distortion. This is the “standing” rule that, only in abortion cases, allows abortion clinics to sue “on behalf of” women allegedly disadvantaged by the law. In all other areas, the one who sues, the plaintiff, must be the one that has been — or is about to be — harmed by the law. In the abortion case, this would be the woman herself. Technically speaking, she would be raising an “as applied” challenge to the law rather than a “facial challenge” (which seeks to have a court reject a law before it has even been applied to anyone). The dissent in Hellerstedt indicated dissatisfaction with this, and Gee gives the new majority an occasion to eliminate it. Though such an outcome might not appear significant, it is. If abortion restriction laws can only be challenged when applied, it gives the law a chance to take effect and, practically speaking, limits the number of cases that arise, thereby removing the Supreme Court as the nation’s “de facto abortion review board.”
In sum, abortion jurisprudence is complicated and confusing (because the Supreme Court has made it so), and the results of future cases are hard to predict. However, in my view, the bottom line appears to be that the court’s forthcoming decision in Gee will mark a significant restriction of the unrestricted abortion license the court created in Roe and Doe.
William Saunders is a human-rights lawyer and professor at The Catholic University of America in Washington, D.C.; the views expressed are his own.